Employment law can result in employers paying significant amounts of money to employees who are unjustifiably dismissed and/or dismissed through an unfair procedure.
Employers are also required to ensure that their workplaces are safe from sexual harassment or other forms of discrimination.
The Union, for and on behalf of its members, negotiates the terms and conditions of its members’ employment with the employer.
These terms and conditions relate to pay issues as well as hours worked, working conditions, breaks and leave.
Employees, who are not members of a Union, normally negotiate directly with their employer about the terms and conditions of their employment.
An employment agreement by law is required to be in writing and the employee should receive it in reasonable time before starting their employment.
The employee is to be given a reasonable opportunity to obtain advice (not necessarily legal advice) prior to signing the employment agreement.
The employment agreement is required, among other things, to record the place of employment, hours of work, pay and other terms and conditions of employment.
The law requires employees who take a job with an employer where the staff are affiliated to a union, to have the same terms and conditions as those recorded in the collective agreement. However, after a month the employer can then negotiate with the employee a new individual employment agreement.
A fixed term employment agreement is only legal if there are genuine reasons based on reasonable grounds for ending the employment, they are:
The following reasons are not genuine reasons for a fixed term of employment:
A probationary period recorded in any employment agreement does not permit an employer to dismiss the employee for poor work performance at the end of that period. They can only do so if the employer has undertaken correct performance reviews throughout the probationary period and the employee has not responded to those performance reviews.
Most personal grievances arise when an employer unjustifiably dismisses an employee or, while legitimately dismissing an employee, the employer fails to act in a procedurally fair manner.
Another form of personal grievance arises when an employer places an employee at a serious disadvantage within the work place but does not go as far as to dismiss them. The employee can raise their personal grievance with the employer, though it can be difficult while still employed there. As a result, an exit package can sometimes be negotiated between the employer and the employee’s representative.
An employee has up to 90 days to raise a personal grievance with an employer.
In the case of unjustified dismissals, the usual rule of thumb is for an employee to seek from their employer a minimum of three months loss of salary and damages for stress and humiliation. Often such personal grievances are resolved at mediation hearings.
Not all mediations result in employees receiving significant sums of money from the employer. The loss of wages component can range between one month to three months loss of salary and in aggravated cases sometimes more. Damages for stress and humiliation generally range anywhere between $500.00 and $5,000.00.
The employee is taxed on the loss of wages component but damages for stress and humiliation are tax-free.
From 23 December 2023, an employer may employ a new employee on a trial period for the first 90 calendar days of their employment. An employer wishing to employ a new employee on a trial period is no longer required to have 19 or fewer employees. There are, however, a number of conditions:
It is important to note that the grievance free trial period will only apply to potential claims of unjustified dismissal during the first 90 days of employment. Employers will still be liable for other types of grievance claims during this period, including claims of disadvantage and discrimination against an employee.
Employers can alternatively use a probationary period clause in the employment agreement. This allows the employer to test the employee’s suitability for the role for a certain time period (typically 3 to 6 months). If the probation period is not going well, the employer can choose to dismiss the employee. However, the dismissal process must be the same as dealing with any other employee.
If an employer believes their employee has acted in an inappropriate manner, for example, dishonestly, or drinking/drug taking during the course of employment, an employer cannot dismiss the employee for serious misconduct. In these instances, a disciplinary hearing must be held.
The employer provides notice to the employee of the details surrounding the alleged misconduct and asks for the employee’s response. Without predetermining the position, the employer, having considered the employee’s response, may then choose to dismiss the employee. Again, it is important that the dismissal is done in a procedurally fair manner.
If an employee wishes to resign from their employment, most collective employment agreements and individual employment agreements record the notice period they are required to give their employer. The notice period can range from one week to one month.
Whilst an employee is free to resign at any time, an employer cannot simply terminate an employee’s employment without having legitimate reasons, namely:
If an employer wishes to dismiss an employee for performance reasons, they must take care to follow an appropriate process. The employer places the employee on notice in writing. This notice must state the areas in which they are deficient. The employer is required to obtain the employee's feedback regarding their concerns and to provide an appropriate level of support for a defined period, assisting the employee to improve their performance.
This process should be repeated two or three times over an extended period. If there is insufficient improvement the employer, having followed the appropriate procedures, will have grounds to dismiss the employee.
It is important that an employer follow the correct legal procedures. Should the employer fail to do so, the employer will inevitably face a personal grievance from the employee on two fronts:
Should the possibility arise that any employee is to be made redundant or an employer is considering selling all, or part of their business; the employer is required by law to place the employee on notice.
Most redundancies can be justified on economic grounds but it is still imperative that an employer follow the appropriate procedures when addressing the possibility of redundancies with any employee.
As with redundancies, an employer, when considering restructuring, is required to consult with its employees and obtain their feedback concerning that possible redundancy.
The employer is required to act in good faith in listening to any proposals that an employee may have concerning a possible redundancy.