Network Magazine Winter 2016 | Page 61

GETTING IT RIGHT WITH YOUR EMPLOYEES (PART 3) Unfortunately, employment relationships do not always work out – so how do you, as employer or employee, stop things getting worse in that situation? WORDS: LEON PONTE his is the third and final instalment of the ‘Getting it right with your employees’ articles in the Legally Fit series. The first two articles discussed getting the hiring process right and things to consider to give the employment relationship the best chance to succeed. Sometimes, however, despite the best intentions, things just don’t work out. Here we look at some of the issues that should be considered to make sure you (as employer or employee) do not make things worse in an already T unfortunate situation. To read previous articles in this series search ‘Legally Fit’ at fitnessnetwork.com.au/resource-library. Probation/minimum employment period It is a common misconception that employees can be dismissed for any reason and without notice or fear of reprisal during a probationary or minimum employment period. The Fair Work Act 2009 (FWA) provides that in order for an employee to have an ‘unfair dismissal’ claim they must have completed a ‘minimum employment period’. The minimum employment period for an employer with fewer than 15 employees (small business employer) is one year, and the period for an employer with 15 or more employees is six months. So an employer can just dismiss an employee for any reason during that period, right? Well, no, as discussed below under ‘General Protections/Adverse Action’. The FWA also requires that an employer give an employee written notice of termination of no less than one week (or pay in lieu) during the minimum employment period (unless the termination is because of serious misconduct). Longer notice periods apply if an employee has worked with the employer for more than one year. The Fitness Industry Award 2010 (Award) also generally requires an employee covered by the Award to give the same amount of notice as an employer is required to give. Casual Another common misconception is that casual employees can also be dismissed (for instance, by just not giving them any further work) for any reason. However, a casual employee will be protected from unfair dismissal if the employee was employed for the minimum employment period, and had a reasonable expectation of continuous employment, on a regular and systematic basis. A casual employee also has rights under the General Protections provisions of the FWA discussed below. Unfair dismissal In addition to having to complete the minimum employment period, an employee must be covered by an award or enterprise agreement or earn less than the high income NETWORK WINTER 2016 | 61