5 HR QUESTIONS CLIENTS ARE ASKING US
1. CAN I TERMINATE SOMEONE IN THEIR PROBATION PERIOD WITH NO REPERCUSSIONS?
A probation period can be seen as an extension to the recruitment process - it's a time where both employee and employer are assessing fit & compatibility.
Even during the probationary period, businesses can face legal issues related to general protections claims. "No-win-no-fee" cases by lawyers have been trending this year. General protection claims relate to bullying, harassment and discrimination.
Usually during probation there is a short notice period to end the employment relationship - 1 week is common. Probation periods can go for different lengths, but it's most common to have a 3 or 6 month probation.
This is because after 6 months of employment, employees (in companies of over 15 employees) are able to access unfair dismissal (UFD) claims, and termination processes must be fair, thorough and follow a set process. For small businesses of under 15 employees, UFD claims can happen after 12 months of employment.
Some companies like to set 3 month probations to have a shorter timeframe to decide if someone is right, with the option to extend to 6.
We generally recommend a 6 month probation period paired with a great onboarding program involving check-in meetings at the 30, 60 & 90 day points to gather feedback & assess fit. A reminder goes in the calendar at 5 months to then make a decision on probation, meet with the employee and issue a letter to formalise.
Tips
Ensure employees are treated with respect at all times.
Set calendar reminders for probationary period endings.
Conduct regular check-ins during the probationary period.
2. CAN I GET IN TROUBLE FOR UNDERPAYING STAFF UNINTENTIONALLY?
Even large employers like Woolworths and BHP have been in the headlines for making mistakes in this space, often related to overtime, award allowances, and outdated pay rates.
Honest mistakes can lead to millions of dollars’ worth of under payments to workers especially if the mistake is not identified and rectified. Often employers are unaware they have been underpaying their employees until a wage audit is conducted and the severity of the underpayment is revealed.
What causes underpayment of employees?
A mistake or payroll error.
Not paying allowances or the appropriate penalty rates for the day of the week/time of day.
Incorrect base rates or classifications in the employment contracts.
Lack of understanding of what constitutes fair pay for an employee’s position (including if the job title doesn’t accurately represent the worker’s actual job).
Deliberately underpaying employees due to discrimination (including age, race, disability or gender discrimination).
Failure to accurately record hours of work.
Leave accruing incorrectly.
Failing to pay superannuation
Fair Work conducts audits regularly and will usually issue a fine, even if they underpayment is unintentional. Fines can be up to $18,780 per contravention of the Fair Work Act for an individuals and $93,900 per contravention for companies.
With criminalisation on the horizon and large financial penalties already in place, it is important employers take the following steps to ensure they are complying with their legal obligations:
Review employee wages against the relevant industrial instrument and/or the national minimum wage;
Keep up to date with any changes to industrial instruments or the national minimum wage;
Ensure your employees are correctly classified for the job they are undertaking;
Perform regular wage audits;
Review payroll functions and ensure it is properly resourced;
Make employees feel comfortable to raise any wage or entitlement issues; and
Seek legal advice before an issue occurs where possible.
3. IS LONG SERVICE LEAVE FOR ALL TYPES OF EMPLOYEES, CASUALS TOO?
The Long Service Leave (LSL) Act applies to most private sector full time, part time and casual employees in Western Australia, including employees covered by national modern awards. It’s for employees who has had ‘continuous employment’ with the same employer for 7-10 years.
The LSL Act provides a leave entitlement of 8 2⁄3 weeks per 10 years of continuous service, with a pro-rata payment due on termination after seven years’ service. Because the LSL Act applies to casual employees, many long-term casuals may have LSL entitlements. A casual or seasonal employee can have continuous employment despite working intermittently and/or with varying hours.
A casual or seasonal employee can also have continuous employment with an employer despite the fact that the employee is also employed by another company during the period of employment with the employer.
To calculate the long service leave entitlement for a casual employee, the hours the employee has worked per week are averaged for the period of employment during which the long service leave accrued. LSL is paid at the rate they are on when the LSL is owed.
Tips:
Create a report which shows your employee’s tenure.
Ensure you are putting money aside for LSL payments.
Plan ahead for workload and team cover for employees going on LSL.
Encourage employees coming up to 10 years of service to plan ahead and share how they intend to take their leave.
4. HOW CAN I PERFORMANCE MANAGE SOMEONE WITH MENTAL HEALTH ISSUES?
Employers have a valuable role to play in assisting their employees in the management of mental health issues such as depression, anxiety and isolation. It should be clearly stated that a mental health condition is certainly not a performance issue in itself. There are, however, times when an individual experiencing mental health issues will also demonstrate performance issues.
Employers should treat under performance and mental health as distinctly separate matters, even when they coincide.
Employers should aim to:
explore the reasons for poor performance, particularly when a mental health problem is known or suspected.
give employees an opportunity to disclose any health problems that might be impacting on their performance but keep discussions focused on work issues.
approach discussions in a nonjudgmental way, asking simple questions about whether anything is affecting the employee’s performance.
if an employee discloses a mental health problem, consider and agree on any reasonable adjustments and how these might be implemented.
where possible, provide support and make reasonable adjustments before following formal performance management procedures.
consider allowing the employee to be supported in meetings by a mental health advocate, colleague or someone who understands their mental health problem
use mediation to resolve conflict if necessary
in cases where both formal performance management and sickness absence/return-to-work processes are being followed at the same time, try and keep these separate
make sure policies and procedures are clearly explained so employees know what to expect
5. DO I HAVE TO PAY SUPER FOR CONTRACTORS AS WELL?
As an employer, you have a choice between hiring contractors and employees – both are legitimate as long as the conditions of the working contract match the worker’s classification.
It’s important to understand the difference between employees and independent contractors because it changes your obligations for paying and reporting tax, superannuation and other entitlements for your workers. Penalties and charges may apply if you incorrectly classify an employee as a contractor and fail to meet the relevant obligations or entitlements for that worker.
Although you generally don’t need to make super guarantee contributions for independent contractors, you may be required to make contributions for a contractor where the contract engaging them is wholly or principally for their labour.
What does this mean? The concept of “wholly or principally” for a person’s labour exists in circumstances where:
you provide payment for your contractor’s personal labour and skills, including physical, mental or artistic labour;
your contractor performs their work personally and cannot delegate the work; and
you make payments for each hour of work, rather than to complete a specific project.
What contractors do you engage in your business? Do you pay them for completion of a job, or for their time?
As a business owner, we understand that employing people can be stressful.
It’s challenging to find and retain quality staff, all while keeping up with the ever-changing rules of employment in Australia.
Monday HR is a local Perth-based human resources consultancy providing practical advice to small and medium sized businesses.
We partner with companies who don’t require an internal HR professional in their business every day, but who need HR advice and someone to call when employee situations get complex.
We build teams who look forward to Monday!