The Fair Work laws have been in force now for more than five years, yet many employers are still relying on old, or inaccurate, information when it comes to understanding their employer-related obligations.
Think it’s high time we ‘re-busted’ some of the most common human resources myths that continue to land employers in hot water.
1. The ‘three written warnings’ myth
Employers across the country still toil away under the mistaken belief that an employee can only be dismissed once they’ve been given three written warnings. Wrong! The current laws don’t impose any such obligation.
Instead, the Act simply requires dismissals to be both lawful and fair. In practice, this means you can’t sack someone because you don’t like their gender or race (or any other ‘protected personal attribute’), and you can’t fire someone ‘unfairly.’
What counts as ‘fair’ deserves a blog post all of its own. The key point to note is that, unless an employee has engaged in ‘serious misconduct’, they should generally only be dismissed if they’ve a) been given a previous ‘final’ warning and b) have been given an opportunity to put forward their side of the story before a final decision is made.
2. The ‘probationary period’ myth
The Fair Work Act simply doesn’t recognise the traditional concept of a probationary period at all. Instead, the Act simply says an employee is not protected from unfair dismissal until they’ve completed the applicable ‘minimum employment period’.
In a business with fewer than 15 employees, this period is one year. In all other businesses, it’s six months. These are now the ‘probationary periods’ I recommend you include in your employment contracts.
An employee can be dismissed for any lawful reason before they have completed the minimum employment period. Unless they are a casual or have engaged in serious misconduct, they must still be given one weeks’ notice or payment in lieu of notice.
3. The ‘stress leave’ myth
You can read the Fair Work Act from cover to cover (I don’t actually recommend you do this – it’s rather long and dull) and you won’t find one single reference to ‘stress leave’. Nope, not one.
While personal leave can, of course, be taken by a person who is sick (i.e. ‘stressed’) and unfit for work, ‘stress leave’ is not a recognised stand-alone form of leave under Australia’s current employment laws.
Even a person who is receiving workers’ compensation because of stress is not actually on ‘stress leave’. They are simply on authorised leave while in receipt of workers’ compensation payments.
It’s time we ditched this misleading term – and many other HR myths – once and for all!
FREE HR HEALTH CHECK FOR KEY ADVISORS
Under section 550 of the Fair Work Act 2009, key business advisors such as accountants and bookkeepers can be held personally liable as an ‘accessory’ for their clients’ breaches of Australian employment law. Workforce Guardian’s FREE Fair Work Liability Check will confirm whether you’re exposed to potential penalties of up to $54,000 for each of your own and your clients’ breaches of Australian employment law. If you answer no/unsure to any of these questions, you should take urgent action to reduce your risk of accessorial and personal liability.