NSW BusinessConnect – Employment – Getting It Right

elringtons Lawyers are pleased to be working with the Southern Region Business Enterprise Centre in delivering Employment Law workshops in the local region. The sessions are aimed at new and growing business who want to understand their obligations as an employer, and cover topics including the National Employment Standards, obligations to employees and key workplace policies. We will be presenting at the following locations:

elringtons is a full service firm that has been operating within the region for over 120 years. Our practice groups offer a wide range of services, including dispute resolution, legal advising and drafting across a range of areas, including Employment Law. We have experience advising and acting for both employers and employees in employment law matters including workplace relations, dispute resolution, risk management, work health and safety and workers compensation matters. In addition to our litigation and dispute resolution services, our Business Services team in our Property and Commercial branch offer a wide variety of business-focused legal services. If you are looking for expert legal services from local lawyers that understand your business needs, please get in touch with us at info@elringtons.com.au.

More information on the above workshops, including how to book, is available at www.srbec.com.au.

Is it legal to employ only non-smoker workers? What employee attributes are protected under law?

An ABC News article on 15 March 2018 highlighted that employers, across a broad range of areas, are advertising specifically for non-smoker employees. While this may appear to be discriminatory, it is not unlawful employment discrimination under Australian laws.

In Australia, anti-discrimination laws protect employees (or prospective employees) against discrimination on the grounds of certain attributes. Smoking is not specifically covered by these laws, so it is not something that an employee is protected against.

What are protected attributes? When is an employer unlawfully discriminating?

Australian anti-discrimination laws differ slightly in each state, but generally, an employee is protected against discrimination on the basis of the following:

  • Age, sex or race
  • Sexual orientation, gender identity
  • Disability (physical or mental)
  • Marital status, family or carer responsibilities
  • Pregnancy or breastfeeding
  • Religion or political opinion

The above attributes protect you from being discriminated against in the recruitment process or during your employment. During employment includes discrimination in consideration of the terms offered as part of your contract, training in your job, a promotion of transfer or dismissed from your job.  If your employer threatens or takes any of the following actions against you because of the above attributes, it is considered unlawful discrimination:

  • Refuses to employ you
  • Dismisses or fires you
  • Alters your position in a disadvantageous way
  • Discriminates between you and another employee

What is not protected? When is an employer not unlawfully discriminating?

There are certain attributes that are not protected, meaning it is not necessarily unlawful to discriminate against an employee, such as in the non-smoker employees example above. If your position has been changed in a way that you feel disadvantages you, but it was due to something such as poor performance, it is not unlawful. Employers may also advertise for applicants with certain attributes, qualification or skills that are an essential requirement for the job. For example, if driving is involved in a job, then the employer can lawfully only consider people with a driver’s licence for the position.

Please feel free to contact our Litigation and Dispute Resolution team if you think you have been discriminated against at work or wish to discuss any concerns.

Further information:

When is employment discrimination lawful?
How can you protect your business from bullying, harassment and discrimination claims?

e: info@elringtons.com.au | p: +61 2 6206 1300

How can you protect your business from bullying, harassment and discrimination claims?

It should be standard practice for all business, big or small, to have policies in place that deal with workplace discrimination, harassment and bullying. If you do not have such policies in place, it could expose your business to possible claims of discriminatory, bullying and harassing behaviours.

By not managing accordingly the risks, or the possible risks, caused by the workplace discrimination, harassment and bullying, it could give raise to a number of possible claims:

  • Your business being liable for the conduct or actions of your employees while employed, or in connection with their employment. That represents vicarious liability.
  • In such situations, an employer could be relying on ‘all reasonable steps’ defence in relation to such a claim. However, the ‘all reasonable steps’ defence is not defined in the legislation and it applies to employers in different ways depending on the size of the business, number of employees, number of offices, nature of work and other characteristics that may be relevant.
  • The perpetrators could be personally liable for their actions even though such actions were taken while at work or in connections with their employment.
  • Both you and the employee could be held jointly liable for the actions or behaviors that could amount to discrimination, harassment or bullying.

You can protect your business by implementing and adopting risk management policies. Preventing possible claims from occurring should be done through current and complete policies. Such policies should provide the tools needed by your business (or your HR department) to manage any claims and if possible to prevent them from being referred to external government agencies like anti-discrimination commissions or tribunals.

  • As a minimal way of protecting your business, you should consider the following:
  • To provide copies of relevant policies to all new employees upon commencement of employment
  • To review the policies on regular basis so they reflect any changes in legislation
  • To make employees aware of any updates and changes to their policies within a reasonable period of time
  • To conduct formal or informal training sessions in relation to discrimination, bullying and harassment
  • To make it clear that treating a fellow employee in a discriminatory or harassing way is against the law
  • The policies should discuss breaches that could occur through social media even though the social media platform is accessed and used during employee’s private time or from employee’s personal device (i.e. a mobile phone during a lunch break)
  • The policies to identify the relevant acts that deal with such behaviour.

If you would like advice on drafting, reviewing or implementing policies on bullying, harassment or discrimination in your business contact Matthew Bridger:

e: mbridger@elringtons.com.au | p: 02 6206 1300

When is employment discrimination lawful?

It is well known that employment is an important factor for individual welfare and economic security. However, it is also well known that people with disabilities, older Australians, people that come from a diverse cultural or ethnic background find it more difficult to obtain jobs.

Employment discrimination can be defined as treating an employee or a group of employees less favourably than another employee or group in the workplace who are in the same or similar circumstances. However, the legislation provides certain exceptions when discriminatory conduct may be lawful. These would be the cases where an employer could have a strong defence in relation to discrimination claims made by a prospective or existing employee. A few examples of situation when an employer may be able to claim that discriminatory actions are justified are as follows:

  • The employee cannot perform the inherent requirements of the role
  • The employer’s ability (or inability) to make adjustments to offer or maintain employment which may result in an unjustifiable hardship for the employer, then it may be lawful for the employer to discriminate against a person with a disability
  • The employee has a condition or a disease where discriminating against that person would be seen as ‘reasonable’ as it would be a matter of protection of public health and safety
  • Court orders or compliance with certain legislation that may impose that an employee cannot work in certain environments (for example working with minors where the employee had a conviction relating to indecent assaults against children)
  • Discriminatory provisions based on citizenship status.

If you need further advice regarding lawful discrimination in the workplace, please contact Matthew Bridger:

e: mbridger@elringtons.com.au | p: 02 6206 1300.

Making an Employee Redundant?

What should an Employer Do Before and After Starting the Redundancy Process?
  1. I have made that person redundant; why have they lodged an unfair dismissal application?

Properly making an employee redundant is not as simple as deciding that the employee’s position is no longer required, even if there are strong business grounds indicating that is the case. This is because terminating an employee due to the position no longer being required is and of itself not a defence to an unfair dismissal claim. Rather, it must be shown that the redundancy was a “genuine redundancy” within the meaning of the Fair Work Act for an employer to protect themselves from an unfair dismissal claim.

A “genuine redundancy” is defined in the Fair Work Act as follows:

  • a person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
  • the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

Further, that section also provides that the termination of an employee is not a case of genuine redundancy if it would have been reasonable, in all the circumstances, for the person to be redeployed within:

  • the employer’s enterprise; or
  • the enterprise of an associated entity of the employer.

Failure to adhere to even one of the above steps is likely to render a termination not a genuine redundancy, despite the satisfaction of all the other required steps.

  1. What are changes in the operational requirements of my enterprise?

Generally speaking, a change in the operational requirements of an employer’s enterprise would be, for example, the introduction of machinery, downturn in business, outsourcing or the business being moved overseas.

  1. Can I make someone redundant even if some of that person’s duties are being performed by other employees?

Yes. A “genuine redundancy” will occur if a person’s “job” is no longer required, rather than the duties or tasks of that job no longer being. For instance, the Commission has found that there will be a genuine redundancy if an employee is terminated and the associated duties are assigned to other employees for the employer.

  1. What is my obligation to consult before I make someone redundant?

An employer is required to consult only if a modern award or enterprise agreement contains a requirement to consult about redundancy. It should be said though that nearly all modern awards and enterprise agreements contain a requirement to consult in relation to redundancy or the more generic “major workplace change”, in which redundancy would almost certainly fall within. In any event, if an employer is unsure about whether they need to consult, it is always best practice to consult with effected employees prior to making any decision to make redundancies.

It is crucial that an employer makes sure they properly follow the consultation clause in the applicable modern award or enterprise agreement, as the consultation clause may vary between instruments. Generally though, there is an obligation to notify an employee of a major workplace change, such as looking at making redundancies, and an obligation to discuss the redundancy with the affected employee(s) before an irreversible decision is made to make an employee(s) redundant. Consultation should occur in order to allow the effected employee(s) to an opportunity to be heard about the proposals before a decision is finalised.

  1. When will it be reasonable to redeploy an employee to another part of my business?

In our experience, sometimes employers fail to consider redeploying an employee in other parts of their business before making them redundant. Therefore, consideration is never given as to whether it would be reasonable to redeploy the redundant employee to perform another job in the business.

Far too often, employers fatally presume that a redundant employee will not accept a lower paid, lower responsibility job or lower hour job, and therefore do not offer the redundant employee redeployment into that position.

  1. I can just select whoever I want to make redundant, right?

No, even in circumstances where there is only 1 position out of 10 being made redundant. Some lawful, logical, sound or defensible selection process must be relied on by the employer in making a decision as to whom should be made redundant. If the selection process is not lawful, it may give rise to a claim by an employee for a breach of a general protection or a claim under an anti-discrimination law.

Conclusion

Before embarking on making an employee redundant, an employer must implement a proper procedure in order to minimise exposure to litigation in the form of an unfair dismissal claim, as well as consider all entitlements that will need to be paid to an employee on redundancy. However, if you need assistance in relation to conducting the redundancy process, contact our lawyers who have expertise in employment law.

For more information please contact Matthew Bridger

p: +61 2 6206 1300 | e: mbridger@elringtons.com.au