Employment law covers a range of matters affecting the human resources of an enterprise and the operations of a workplace.
Employers, managers, and employees are expected to understand their obligations under a matrix of laws, regulations, and policies. Education, guidance, and understanding is key to minimising issues. Effective management requires a proactive approach to potential problems and knowing when to get help to clarify legal issues and address disputes before they escalate.
Employees and executives confronting workplace issues such as disciplinary action, redundancy, termination, or dismissal should ensure their legal rights are protected by obtaining individual legal representation. These issues can be confronting and may have a long-lasting impact on an individual’s financial circumstances, reputation, and career progression.
Our team is commercially insightful, with a depth of employment law knowledge. We provide guidance and assistance to numerous employers, executives, and employees across a range of employment law matters.
The employer / employee relationship
Critical to the success of an organisation is the competent management of the employer / employee relationship across each phase of the employment cycle, whether that be at the planning, management, or dispute resolution stage.
Strategies to effectively recruit and manage staff, foster an inclusive work environment, and prevent breaches of fundamental workplace rights are essential to achieve optimum performance and minimise disruption and loss.
Whether hiring at a junior or executive level, an employment contract provides clarity regarding the rights and responsibilities of the employee and the organisation. Employment contracts should be well structured and include key terms such as:
- commencement date and duration of employment, if for a fixed term;
- duties and accountabilities including reporting lines;
- remuneration and overtime arrangements;
- leave entitlements and superannuation;
- probation periods and disciplinary procedures;
- termination and notice requirements;
- performance appraisals and wage reviews;
- restraint of trade and confidentiality provisions; and
- confirmation of the legislation / award governing the employment relationship.
Enforcing post-employment restraints
Client contacts, confidential information and intellectual property are highly valuable to an organisation. Restraint of trade and confidentiality clauses in employment contracts are essential to protect against the potential misuse of these assets, particularly when an employee leaves an organisation.
Restraint of trade clauses are sometimes difficult to enforce and may be construed differently across various jurisdictions. Consequently, they must be carefully considered and drafted to provide maximum protection for the employer.
Managing performance, termination, and redundancy
The decision to terminate an employee can open the door to a potential claim for unfair dismissal. Organisations must follow sound processes for conducting performance appraisals, taking disciplinary action, and terminating employment on grounds of poor performance, misconduct or due to redundancy.
We recommend obtaining legal advice when addressing ongoing performance issues or misconduct, and before terminating an employee no matter what the circumstances.
When termination is based on redundancy, an employer may be liable to the employee if it can be shown that the redundancy was not genuine. Essentially, genuine redundancy means that the duties performed by the departing employee are no longer required to be performed by anybody. In other words, the role no longer exists.
Circumstances that could lead to an unlawful dismissal claim (also know as a General Protection or Adverse Action claim) should also be monitored. Unlawful dismissal claims arise where it can be shown that the grounds for termination were based on factors such as an employee’s temporary absence related to illness or injury, union membership, making a complaint, or participating in legal proceedings against an employer.
Bullying, harassment, and discrimination
A bullying, harassment or discrimination claim can receive adverse media attention, threaten the reputation of an organisation, and cause financial loss. To minimise potential claims, organisations should understand the types of conduct and behaviour that may breach protective workplace laws and be proactive in addressing these issues.
Developing policies and procedures
Implementing systems to deal with workplace matters such as performance, discipline, discrimination, and conflict resolution form an essential part of risk management.
Policies and codes of conduct addressing bullying and harassment can be invaluable in proving to a Commission or Court that an organisation has made genuine efforts to enforce the required conduct expected of its employees. Policies should be supported by fair processes and brought to the attention of all employees.
Working with an employment specialist helps employers stay abreast of current workplace laws and practices. Together, organisations and their advisers can implement strategies to minimise disruption and mitigate risk.
Restructuring, mergers and acquisitions
Employee benefits must be considered when organisations undergo a corporate restructure, joint venture, or merger / acquisition. These events trigger issues across the workplace, particularly regarding the transfer of employees, termination and redundancy entitlements. Directors should obtain legal advice and representation during these significant events.
Assistance for employees / executives
An employee or executive may, in some instances, take action against an employer for certain unlawful activities under the general protection provisions of the Fair Work Act, or for discriminatory conduct, harassment or bullying.
If you believe you have been treated unfairly in the workplace, it is important to seek appropriate advice.
We can also assist with reviewing and negotiating the terms and conditions of an employment contract and can represent employees during enterprise bargaining processes.
We help employers, executives, and employees to prevent, minimise and resolve workplace issues and encourage our clients to contact us for a frank and open discussion about their matter. We can assist with:
- Employment contracts, executive agreements, enterprise agreements, labour hire arrangements – drafting, reviewing, interpreting and negotiating, employee/contractor distinction
- Policies, training, enforcement, and certification
- Awards – compliance, interpretation and Fair Work Ombudsman enforcement matters
- Dismissals, redundancy and terminations including performance management and disciplinary / dismissal processes
- Bullying, adverse action, discrimination – advice, prevention, and representation
- Restraints – confidentiality, intellectual property, privacy – advice, drafting and enforcement
- Transfer / sale of business / restructuring due diligence
- Industrial relations – enterprise bargaining, union issues, industrial action, strategic advice and representation
- Whitsleblower proceedings and protection
- Representation and advocacy across all courts, tribunals and jurisdictions – unfair dismissals, adverse action, bullying, discrimination, contract enforcement and industrial action