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New Legislation Encourages Genuine Consideration of Employee Requests

Introduction

In today's fast-paced business world, managing employment laws and employee relations can be overwhelming, especially for small and medium businesses who don’t have in-house HR expertise. The ever-changing landscape of regulations and the complexities of human resources can sometimes leave business owners uncertain about the best course of action. Real-world examples often provide invaluable insights that can help illuminate the path to effective HR management. One such example is the recent Fair Work Commission case of Kate Clift v Tony's Wholesale Flowers. The Case in Question: Kate Clift v Tony's Wholesale Flowers In this case, a casual worker named Kate Clift found herself at the centre of a legal battle after being dismissed from her job at Tony's Wholesale Flowers. What makes this case particularly significant is the context of her dismissal: she claimed she was wrongfully terminated after she took sick leave. Kate Clift had been employed at Tony's Wholesale Flowers for 19 months, working as a casual employee in production. She and two colleagues were stunned to receive an email from their boss, Tristan Smith, informing them that their positions had come to an end. The email stated that their roles were being terminated due to the end of the event season, and they were thanked for their hard work during that period. It’s worth noting that Clift’s contract stated that no notice was required to terminate her employment. However, Kate Clift believed there was more to her dismissal as she received the email one day after she called in sick for the third time in two weeks. She lodged a dispute with the Fair Work Commission, asserting that her status as a regular and systematic casual employee entitled her to protection against unfair dismissal. Her argument hinged on the fact that she had consistently worked similar shifts over the span of more than 12 months, and thus should not have been terminated without proper consideration. Furthermore, in her application to the commission, Clift said she missed two shifts because she was sick and the third as she was experiencing “trauma and emotional distress” from her home being broken into. She had communicated her feelings of sickness and unease to her employer, although she hadn't explicitly disclosed that her home had been broken into on the last day that she called in sick. Commissioner Hampton determined that although Tony’s Flowers may have had an objectively justifiable reason for the dismissal - that work was drying up as the business headed into the off-season - it was not related to Clift’s capacity or conduct at work and therefore was not a “valid reason”. Hampton also said the way Clift was let go via email was unreasonable and therefore deemed it an unfair dismissal. What have we learned from this case? Lesson 1: Prioritise Compliance and Fairness Doing things by the book is crucial. The Clift case reminded me of the significance of understanding employment laws and ensuring procedural fairness when making tough termination decisions. It's essential to have a solid foundation of compliance and a process to guide the way. How to Minimise Risk: Regularly review your employment practices to ensure they align with relevant laws. Establish clear criteria for termination, grounded in valid reasons and fair procedures. Lesson 2: Respect Employee Privacy Regarding Sick Leave Your employees' well-being matters. The case showed the importance of respecting employee privacy, especially when it comes to sick leave. Open and honest communication builds trust and fosters a supportive workplace culture. How to Minimise Risk: Encourage open communication about sickness or personal circumstances. Respect employees' privacy and create an environment where they feel comfortable discussing their challenges. Lesson 3: Prioritise Written HR Policies and Procedures Having clear and well-defined HR policies and procedures or an employee handbook is like having a compass to navigate through HR challenges. These documents set expectations and ensure everyone knows their rights and responsibilities, creating consistency in decision-making. How to Minimise Risk: Develop comprehensive HR policies and procedures tailored to your business's needs. Regularly review and update these documents to reflect changes in legislation and business practices. Lesson 4: Seek Expertise from an Experienced HR Professional An experienced HR consultant can be your superhero! They know the ins and outs of relevant legislation and can tailor policies that suit your unique business needs. How to Minimise Risk: Collaborate with an HR consultant to ensure your policies and practices align with legal requirements. Leverage their expertise to navigate complex HR challenges and minimise potential risks. Lesson 5: Proactive Management of Employee Relations Happy employees lead to a thriving business. Effective communication, conflict resolution strategies, and performance management are crucial for maintaining a positive work environment. A HR consultant can help you establish these practices and keep your team engaged. How to Minimise Risk: Foster open communication channels to address concerns and conflicts promptly. Implement regular performance reviews and feedback sessions to nurture employee growth. Lesson 6: Mitigate Risks with Procedural Fairness The last thing you want is to face an unfair dismissal claim. Properly notifying employees about dismissal reasons and providing them an opportunity to respond is key to procedural fairness. Even when contracts state that no notice is required, it’s important to consider how and when that message is delivered to staff, particularly in light of Commissioner Hampton’s comments about Clift being advised by email was unreasonable. How to Minimise Risk: Establish clear procedures for dismissals, ensuring they adhere to legal standards. Seek guidance from an HR consultant to navigate the dismissal process with fairness and transparency. In conclusion, the case of Kate Clift v Tony's Wholesale Flowers serves as a powerful reminder of the importance of understanding employment laws, respecting employee rights, and maintaining a fair workplace environment. By integrating the lessons from this case into your HR practices, you can navigate the complexities of employment management with confidence. Need more help? If you're unsure about how to navigate this issue or any other HR matter, here are the ways I can help you: Click here to book a FREE 15 minute consultation to discuss your HR challenges. Click here to book a HR Health Check. Click here to join my mailing list to get more tips, advice and updates on all things HR and Leadership.The body content of your post goes here. To edit this text, click on it and delete this default text and start typing your own or paste your own from a different source.

Mastering the Social Media Minefield Why is this an issue right now? Social media has become an integral part of our lives, both personally and professionally. With an estimated 21.3 million Australians expected to be active on social media in 2023 (representing over 80% of the population and spending more than two hours daily), employers can no longer afford to overlook the impact of social media use by their employees. It's essential to recognise that employees' social media activities can pose risks to their employers' brand reputation. Inappropriate comments, abusive behaviour, sexism, threats, harassment, gossip, policy violations, or breaches of legislation such as anti-discrimination laws can all occur in various online platforms, including messaging apps. Without an appropriate social media policy and effective training in place, employers may find it challenging to take appropriate action. In this blog, we will delve into the importance of addressing employee social media usage and provide valuable insights into creating a robust social media policy and implementing effective training. By doing so, employers can safeguard their brand reputation, mitigate legal risks, and foster a positive and responsible online presence. Is your company's social media policy and training process strong enough to protect you from unfair dismissal claims? Recent decisions by the Fair Work Commission (FWC) shed light on the importance of clear and practical training, rather than just going through the motions. Let's take a look at a real-life case from April 2023 involving two firefighters who were fired for sharing offensive and pornographic content in a private Facebook Messenger chat called "Sickos video sharing group." Here's the surprising part: one of the firefighters got his job back (check out Mr Martin Pelly v Ventia Australia Pty Ltd T/A Ventia 2023 FWC 907 18 April 2023 ). Despite posting inappropriate and sexist comments, the FWC reinstated him. Why? Well, it turns out he wasn't properly trained in the company's social media policy, and the online-only training he received was deemed inadequate. It's interesting to note that most of the offensive posts were made outside of work hours. The FWC recognised that employees have a right to a private life and that it's not their role to judge personal behaviour. However, the second firefighter who posted a pornographic video during work hours wasn't as lucky (see Mr Adam Thompson v Ventia Australia Pty Ltd T/A Ventia [2023] FWC 904 -18 April 2023 ). It's common sense that sharing pornography while on the clock is inappropriate conduct, even without specific training. Although the Facebook chat didn't mention the employer, and the employee didn't use work devices to post, the fact that the offensive message was sent during work hours justified the dismissal. The FWC criticised the employer's haphazard training approach, which seemed superficial and self-taught. They recommended face-to-face training with educational rigor and outcomes. In another recent case ( Mr Michael Varker v Victoria Police FWC 1161 – 17 May 2023 ), an employee's personal social media posts were found to be concerning, inappropriate, and racist. However, the FWC didn't consider them a breach of the employer's social media policy because they were made during personal time and didn't directly impact the employer's reputation. What can you do to minimise you risk? These cases serve as a reminder to employers to take specific actions: Clearly define the boundaries and context for private social media posts, which can be more important than the content itself when dealing with disciplinary actions or termination decisions. Review and improve the clarity and delivery of your social media policies and training. Make sure employees understand the policy's purpose, scope, and the platforms it covers (such as LinkedIn, TikTok, Facebook). Communicate clear expectations for representing the employer on public social media platforms, emphasising that online conduct can affect employment if it's connected to their job or reflects poorly on the employer. Consider the appropriateness of your training approach, including the possibility of face-to-face sessions for your workplace. Use plain language in your training materials and policies to ensure understanding. Clearly communicate your expectations for employee conduct both inside and outside of work. Regularly update and distribute your policies to align with changes in legislation. Continuously monitor and enforce compliance with your policies. Provide clarity on the boundaries for using personal accounts and devices when expressing divisive opinions or sharing offensive and inappropriate comments, as these can be traced back to the employer. Educate employees on handling confidential information and respecting intellectual property boundaries when sharing online. By implementing a strong policy and delivering clear, regular training, employers can eliminate any confusion about expectations for online conduct. Need more help? If you're unsure about how to navigate this issue or any other HR matter, here are the ways I can help you: Click here to book a FREE 15 minute consultation to discuss your HR challenges. Click here to book a HR Health Check, currently $297 (Value $499). Click here to join my mailing list to get more tips, advice and updates on all things HR and Leadership.