personnel file & record book - meta management · employment can result in fines and...

Personnel File & Record Book

Easy-to-follow Guide for Australian Employers

Name of Employee

Date of Employee commencement

Position at commencement

© Meta Management

Acknowledgements

© Meta Management Solutions Pty Ltd

All rights reserved.

Disclaimer:

This booklet was produced by Meta Management Solutions Pty Ltd to be used as a general guide and

reference. You should not rely on the information within but seek professional advice specific to your

particular circumstances.

Every effort has been made to ensure that this material is free from error or omissions. However, you

should conduct your own enquiries and seek professional advice before relying on any fact, statement or

matter contained in this book. Meta Management Solutions Pty Ltd is not responsible for any injury, loss or

damage as a result of material included or omitted from this material.

Information in this material is current at the time of publication.

Updated November 2016

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Introduction

Did you know that failure to keep certain records and provide employees certain information about their employment can result in fines and prosecution for the employer? Employment regulations and red tape have increased steadily, as has the cost of employment. At best,

mistakes make your job harder; you simply spend more time than you want to sort out employee issues.

At worst you can face fines or be prosecuted for breaching your employer responsibilities. A breach of the

Fair Work Act can lead to penalties in the thousands of dollars against the entity and/or the responsible

directors. The Fair Work website has details on the protections it provides workers.

The law places an obligation on the employer to comply with conditions that regulate how they treat the

people who provide their labour. For this reason, if not that good employee relations make for a happier,

more stable and more productive workplace and required less management time and effort, this Book has

been designed so that with employment procedures properly managed, everyone can focus on the job they

are there to do.

Using the Personnel Record Book

Employers have an impossible task of having to instantly become experts in payroll, occupational health

and safety, employment law, human behaviour, Awards, labour administration and a whole range of other

specialist fields, all the while trying to run a business.

The Personnel Record Book is designed for the small business employer to quickly and easily complete the

activities that are necessary when employing people. You are guided through the various stages of

employment; from hiring through to what to do when it is time the for the employment relationship to

come to an end. As the majority of workers in Australia are covered by the Fair Work Act 2009 (Cth) much

of the information in the Personnel Record Book reflects these requirements.

In each section you will find a general introduction. Each section is also full of tips and additional

information (in lighter print) to help you through various decisions and activities related to that stage of

employment. The recordkeeping pages provide blank fields where you should record the information

particular to the situation and employee.

Use one Book per Employee

Remember to keep the Book safely and securely locked away any time it is not being used

Note that the procedures included in this Book are general standards and you should check for the specific

requirements of the industry and job types for which you employ.

https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/protections-at-work

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Important Dates Record

YEAR:

Probationary period end date

YEAR:

YEAR:

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Important Dates Record

YEAR:

YEAR:

YEAR:

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General Details

1. Legal name of Employer

2. Trading name of Employer

3. Address of Employer

4. ABN of Employer

5. Industry Employer operates in

6. Which industrial system do you operate in?

Are you a private sector employer operating in New South Wales, Victoria, Queensland, South Australia,

Tasmania, Australian Capital Territory or Northern Territory or are a constitutional corporation (i.e. Pty

Ltd or Ltd company)?

YES (you and your employees are likely to be covered by the national workplace relations system

including The Fair Work Act 2009)

NO (you and your employees are likely to be covered by a state workplace relations system)

Contact your local government business advice section, your industry association, if you are a member

or Fairwork Australia (http://www.fairwork.gov.au or 13 13 94), if you are unsure or need clarification.

http://www.fairwork.gov.au/

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Pre-Employment

Planning and recording the new hire event.

1. Plan the labour need

2. Select from suitable applicants

3. Recruit the new hire

4. Manage the start-up process

What this section is for

Helps you to assess who is suitable as an employee for the particular position

Guides you to select an employee while avoiding breaching equal opportunity laws

Gets new hires off to the right start

Affords you protection/a pathway if the new hire does not work out

Helps you maximise the benefits of the recruitment process

What you should know

There is something called the “inherent requirements of the position” that make up the “substantive role”,

i.e. the essential aspects that make up the job as a whole. Being clear about what this is will help you

understand your legal rights and obligations.

A current driver’s license, for example, may be an inherent requirement for a sales representative who has

to visit customers. The ability to work evenings and weekends may be an inherent requirement for a

function waiter.

A reference to characteristics such as age, gender, nationality, criminal records, disabilities or religion,

unless these relate directly to the job’s inherent requirements, may be discriminatory. Some requirements

can discriminate indirectly because they effectively disadvantage a certain class of people. Anti-

discrimination laws protect both employees and prospective employees. The Australia Human Rights

Commission website may be helpful (http://www.hreoc.gov.au/).

The Competition and Consumer Act 2010 (formerly known as the Trade Practices Act 1974) prohibits

conduct that is misleading or deceptive, or is likely to mislead or deceive, which might include: the nature

of the work, the pay structure, the number of hours available, the security and stability of the business, and

the type of work activity the prospective employee will be engaged in.

Having documented job requirements and a recruitment process will help you avoid problems.

http://www.hreoc.gov.au/

© Meta Management

Plan the labour need

Use these questions to help identify the best candidates and prepare your position specifications.

Why has this position become vacant?

e.g. the workload is too great for existing staff to handle; to cover a parental leave period

What are the main tasks to be performed by the person in this job?

e.g. answering telephones; serving customers; sales calls to customers; stacking shelves

What are the key measures that will determine how well this job is being performed?

e.g. sales budgets; customer feedback; task checklists; items produced per day

What qualifications, accreditations and licenses are mandatory for a person to perform this job?

e.g. forklift licence; current Practising Certificate; drivers licence; Working with Children check

What skills and knowledge are required for the job tasks to be performed?

e.g. Accounting software to perform bookkeeping tasks; fluent in spoken and written Italian

In what context/environment will the work be performed?

e.g. family business; a large team; working alone

Under what conditions is this work to be performed?

e.g. able to travel; available for weekend work; enclosed spaces; constant heavy lifting

What attributes are necessary for a person to fit with the organisation?

e.g. love of animals to work in an animal shelter; customer-focused

Can this job be filled by more than one person?

e.g. job share arrangement

What additional qualifications, attributes or associations are desirable for this position?

e.g. Certificate IV in Business; previous work experience

Applicant Sourcing

Where will you find, or have referred, people who may be suitable for your position vacancy?

Are there people who may be suitable for consideration that you already know?

e.g. former employees; people who may have applied for work in the past; people who have dealt

with your organisation, for example, as customers or suppliers

Can your field of potential applicants be widened by you taking on someone with lesser skills,

knowledge and qualifications and offer an incentive by providing training?

e.g. train up a current employee; offer a traineeship

Can parts of this job be separated to produce benefits elsewhere?

e.g. tasks suitable for people with a disability on a supported wage system; distributed to improve job

variety amongst existing employees; allow multi-skilling; overcome skill shortage issues

Will you advertise this position?

e.g. local job board, online; social network; newspaper

How will applicants apply for the position?

e.g. by telephone; in person; in writing; completing an application form

When will applications close?

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Job Details

1. Job title

2. Department/Area of work

3. Primary location of work

4. Span of work hours (i.e. days/times work may need to be performed)

5. Regular number of work hours per

The basis of employment is:

Full time (averages to 38 hours per week or according to relevant award or agreement)

Part time (averages to fewer than full time hours per week)

Regular Casual (rostered on a regular and systemic basis)

Casual (rostered on an infrequent and as-needed basis)

6. Position duration

Permanent (position is on-going)

Fixed (position has a definite start and end)

If fixed, what event or condition determines the end of the job?

7. Position responsibilities, duties and expectations

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Tips

Treat the recruitment process as a PR exercise for your organisation

Keep applicants informed of their progress including those who you do not intend to hire or

interview further

There is no such thing as a fool proof interview or fool proof questions

The best interviewees are not necessarily going to be the best for the job; use selection methods that

require more than snappy answers, self-confidence and charming personas

When you no longer need the information applicants provide, for privacy reasons you should destroy

their details unless the applicants have given you permission to retain them on file

Keep a copy of your advertisements with this Record Book for future reference

Those you wish to interview

Explain the process to those you want to interview so they know what to expect and help them

prepare by providing a summary of questions you intend to cover

e.g. first and second interviews; medical test; reference checking

Ask applicants to bring documents to the interview such as: original certificates, photo ID, examples

of their work, written references

A well-run, well-organised recruitment process will give prospective hires confidence that they are

joining a professional organisation and indicates that you would expect the same professionalism

from them

Focus questions on the job you want the person to perform and investigate their capability to

perform the required tasks

e.g. when you were not achieving your last budget what did you do about it?

Where there are practical components of a job, testing can be effective as a selection method

Have your privacy policy ready and offer to give a copy to applicants

Notes of the interview may prove invaluable in the rare event that an unsuccessful applicant wishes

to challenge your decision; there may also be occasions when your notes may be needed to justify a

decision to terminate the person who cannot perform as promised

As much as you may like a person you are interviewing do not offer, or imply you are going to offer

them the job as this will be hard to retract if you find a better applicant or if a reference check does

not go well

Applicant Checks

Qualification checks: ask to see the original or contact the issuing organisation to verify

Checks required in order to hold a position such as, police record check; working with children check;

credit history check, medical check, as may be required by law or industry regulation

Reference checks with previous employers verify information the applicant has provided (some

employers have policies that restrict the information they will provide for reference checks – this is

not necessarily a reflection of a poor history at that company)

Character reference checks are useful if there are no, or not enough information from, employer

references

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Applicant Details

1. Name of Applicant

2. Application details (Keep a copy of the application/notes and assessments and results on file)

Application received by (e.g. letter) on (date)

Interview by (name) on (date)

Other assessment (type) on (date)

Other assessment (type) on (date)

3. Background checks (Keep copies of all checks on file)

History checks e.g. criminal history (list)

(Note when the checks need to be repeated in the Important Dates Record at the front of this

book)

Working rights check (for non-Australian citizens and residents)

Mandatory qualifications/licences/certificates checks (list)

(Note when the credentials need to be renewed in the Important Dates Record at the front of this

book)

Reference checks (Keep a record of the reference check notes on file)

1. Name of referee reference check date

Referee’s (then) position/company

2. Name of referee reference check date

Referee’s (then) position/company

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Making an Offer

There does not need to be a written agreement for the employment contract to exist. However, having

a contract in writing can help clarify the expectations of the employment relationship and identifying for

the employee the standards where compliance is most important. Some sample phrases are provided

here however you should use a legal representative to draw up a contract for your specific needs.

The employee shall carry out the duties of his/her

designated position as instructed including in

writing, by verbal direction or training, faithfully

and to the best of his/her endeavours.

The employee must conduct him or herself in a

manner consistent with the company’s brand and

must not do anything to damage or interfere

with the company’s business and reputation.

The employer may within reason due to operational requirements, make changes to the employee’s

duties, primary work location or reporting structure and this does not necessarily constitute a change in

position or status. Where necessary, training will be provided to the employee.

The employer is committed to providing a safe, secure and healthy workplace for all customers, staff and

suppliers. The employee is required to comply with all health and safety directions and must take active

steps to ensuring a safe, secure and healthy workplace including reporting any hazards or issues.

Specifically behaviour that any reasonable person might find in the circumstances to be bullying,

harassing or discriminatory or otherwise offensive, threatening or intimidating, is prohibited and where

such behaviour is found to have occurred this may result in termination of employment without notice.

The employee is required to advise the employer

of any situations, including other employment

that may pose a potential conflict of interest in

the course of fulfilling his or her duties.

The employee’s use of the company’s equipment

and facilities including email and electronic

devices unless otherwise permitted in writing is

for the sole purpose of the company’s business.

Where there is a potential for risk to life and limb,

the employer is entitled to test the employee

including undertaking random testing, for the

presence of drugs and alcohol in accordance with

the company’s policies and procedures.

The employee will be paid fortnightly every

alternate Thursday in arrears into a nominated

bank account. Payments include all wages and

any applicable penalties, allowances and

overtime less tax and authorised deductions.

The employee may not disclose or use the

company’s intellectual property for any purpose

other than in the course of his/her authorised

duties. This condition will continue to apply after

this employment has ceased.

If the employee is no longer able to perform a

necessary part of his/her job for reasons such as

loss of a required licence, the company may offer

alternative duties if such are available but is

under no obligation to do so.

The employer may deduct payment for any time in which an employee is unable to work due to

circumstances outside of the employer’s control including if the employee is suspended from duty and the

allegation of improper conduct is found to be substantiated.

A notice period of one week, given in writing, is required by either party to terminate this employment

contract within the qualifying period. Thereafter four weeks’ notice or the payment/forfeiture of the

amount equivalent to the period of notice not given is required to terminate this employment contract.

Except in the case of serious misconduct the employer is entitled to terminate the contract without notice.

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Commencement Details

1. Date offer made date accepted

2. Position title at commencement

3. Actual date of commencement

4. Name of award or agreement (if applies)

5. Wage or award or agreement classification or salary at commencement

6. Other benefits offered at commencement

7. Position status (full time, part time or casual)

8. Expected hours/roster

9. Reports to

10. Equipment/uniform/tools to be supplied by employer

11. Equipment/uniform/tools to be supplied by employee

12. Period of probation

(If the Fair Work Act applies, 6 months is allowed for employers with 15 or more employees, 12 months

for employers with under 15 employees)

© Meta Management

Employment

Managing and maintaining the employment relationship.

1. Induct the new employee

2. Maintain employment records

3. Manage employee entitlements

4. Manage performance


Helps you to build your relationship with your employee

Keeps your employee records in one easy-to-manage place

Gives you a reference for common employment matters

Helps you to meet your employer obligations; useful in the event of a workplace inspection such as

by the Fair Work Ombudsman

Will help you to defend your case in certain workplace disputes


Good, open and honest communication is the basis for all relationships and the employment relationship is

no exception. Giving your employees clear directions and feedback and helping them to understand how

their work fits in with your plans for the business is necessary to build employee loyalty and commitment.

The law does not confer automatic rights on employers but requires employers to ‘earn’ those rights. For

example, the employer might think it should have an ‘automatic’ right to dismiss a person who does not

abide by company rules, however that ‘right’ is only (potentially) available if the employer has consistently

supervised those rules, i.e. it has required all employees to abide by the same rules, it has enforced those

rules, it has acted when other employees have not complied with those rules.

Two employer- employee contracts operate in the employment relationship. The first is the basic

employment contract in which the employee exchanges use of his or her personal, physical and mental

effort for money and employee entitlements. The second is the ‘psychological contract’ that refers to

mutual expectations, i.e. how the employee is treated by the employer and what the employer expects the

employee to put into the job. The psychological contract expands to incorporate basic human expectations

such as trust, respect, honesty and fairness.

Both contractual obligations exist in law whether or not there is a written and signed agreement between

the employer and employee. Industrial law and awards, for example, cover areas such as leave, minimum

wages and rights at termination. Courts also consider certain terms to be ‘implied’ in the employment

contract because these terms are necessary for the employment relationship to work. The employee, for

example, owes the employer duties of obedience, fidelity, and care and skill. Employers have a duty,

amongst others, to act in good faith.

© Meta Management

Manage Personnel Records

The following two pages are provided for your convenience which you may choose to complete or have

the employee complete in this book or photocopy to complete and file separately.

Manage Paperwork

The best time to manage the completion of forms and paperwork is as soon as possible, such as when

the new employee first reports to work, before other tasks and priorities get in the way.

Always ask the employee to give information and requests to you in writing to minimise errors, for

example, bank account details for payroll

Keep copies of paperwork safe and in a secure place

Remember privacy laws require you to destroy personal information that is not relevant to the

employment relationship

Employee and wage records, including for past employees, and in both paper and electronic form,

must be kept for seven years

For Award Employees

An award is a set of minimum employment standards that apply to employees who work in a particular

industry (e.g. Broadcasting and Recorded Entertainment Award) or vocation (e.g. Commercial Sales

Award). Awards can be State-based or Federal.

A reference to a ‘Modern Award’ is an Award that has been created under the Fair Work Act 2009 which

is therefore, a federal (i.e. not State-based) award.

An enterprise agreement (‘agreement’) is a replacement for an award that has been negotiated between

the employer and its workforce. The agreement can be more beneficial for employees than the award

that would have otherwise applied, but not less. Its aim is generally to adapt the terms of the award to

suit the employer or to replace many different awards that operate with one agreement.

Even if you do not pay according to an award, if there is an award that applies to the employee’s

profession or job the award still applies.

You may pay a salary or wage that does not provide the penalties or loadings stipulated in the award

as long as the total amount paid equals or betters the amount the employee would have earned if

paid in accordance with the award (the comparison is called the ‘better off overall test’ or BOOT)

Have a copy of the award available or accessible for employees who wish to refer to it

Adhere to award conditions such as dispute resolution procedures

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Personnel Details

1. Name (first) (middle)

(last) (preferred)

2. Address(es)

3. Telephone (mobile)

(home)

4. E-mail

5. Emergency Contact 1 (name and number)

6. Emergency Contact 2 (name and number)

7. Medical Professional (name, clinic name and number)

(This field is optional and is useful if the employee has a medical condition that may occur at work, e.g.

asthma, serious food allergy)

8. Other (name, relationship and number)

© Meta Management

Payroll Requirements

The employer must comply with time and wage recordkeeping requirements and these records can be

inspected by the relevant authority on request. The following apply under the Fair Work Act 2009.

Time and wage records required information

The name of the employer and the name of the employee

The Australian Business Number (ABN) of the employer

Date the employee started employment

If the employee is full-time, part-time

If the employee is permanent, temporary or casual

The employee's pay rate, including gross and net amounts paid and any deductions from the gross

amount

Any loadings, monetary allowances, bonuses, incentive-based payments, penalty rates or other

entitlements paid that can be singled out

If a penalty rate or loading must be paid for overtime hours actually worked, the number of hours

of overtime worked, or when the employee started and finished working overtime

Hours worked if the employee works casual or irregular part-time hours and is guaranteed a pay

rate set by reference to a period of time worked

A copy of the written agreement if you and your employee have agreed to average the employee's

work hours

If you and your employee have agreed to an individual flexibility arrangement, a copy of that

agreement, and, if the agreement is terminated, a copy of the termination

Records of employee start and finish times

Records of leave entitlements

Payslips required information

The name of the employer (for example, XYZ Pty Ltd trading as ABC)

The Australian Business Number (ABN) (if any) of the employer

The employee’s name

The date of payment

The pay period (e.g. 02/01/2012 to 15/01/2012)

The gross and net amount of pay

Any loadings, monetary allowances, bonuses, incentive-based payments, penalty rates or other

entitlements paid that can be singled out

If the employee is paid an hourly rate, the ordinary hourly pay rate and number of hours worked at

that rate and the amount of pay at that rate

If the employee is paid an annual rate (salary), the rate as at the last day in the pay period

Any deductions made from the employee's pay, including the amount and details of each

deduction (including superannuation) including the name, or the name and number, of the fund or

account the deductions are paid into

If you are required to pay superannuation: the amount of each superannuation contribution made

during the period to which the pay slip relates, or the amounts of contributions that you are liable

to make and the name or the name and number of the superannuation fund to be paid into

The pay slip must be provided within one (1) working day of employee being paid

http://www.fairwork.gov.au/resources/glossary/pages/default.aspx#gross-pay

http://www.fairwork.gov.au/resources/glossary/pages/default.aspx#gross-pay

© Meta Management

Payroll Details

1. Bank name 1 (bank name and branch name)

BSB account number

Name on account


BSB account number

Name on account

Amount/percentage of pay to deposit


BSB account number

Name on account

Amount/percentage of pay to deposit

4. Garnishee details

Account Name

Account Details

Amount per

5. Other banking requirements

Account Name

Account Details

Amount per

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Document Records

The following pages are provided for you to record official documents you provide to your employee,

particularly for documents that have a compliance-related consequence, for example:

Document: Working with Children Check given to employee for completion

Issued/Lodged date (i.e. the date you gave the form to the employee): 05/03/2014

Returned/Completed date (i.e. the date the employee gave the form back to you): 09/03/2014

Note: Check must be completed before driver can make deliveries to schools

Some documents have a two stage process, for example:

Document Working with Children Check lodged at Post Office

Issued/Lodged date (i.e. the date you lodged the form) 12/03/2014

Returned/Completed date (i.e. the date the form was approved) 02/04/2014

Note Due to be renewed in 5 years – date has been added to the Record of Important Dates

Essential Forms

Tax File Number (TFN) Declaration (available from the ATO, newsagents) must be lodged within 14

days

Superannuation Standard Choice (available from the ATO or superannuation fund) used to nominate

a preferred superannuation provider otherwise payments are made to the employer’s default fund

For employers covered by the Fair Work Act 2009 a copy of the Fair Work Information Statement

(available from the Fair Work website http://www.fairwork.gov.au) must be given (paper or

electronic copy or via web link) to the employee before or as soon as possible following the new

employee’s commencement

Other Documents

Union membership

Guarantee of annual earnings (see below)

Individual Flexibility Arrangements (next page)

Guarantee of annual earnings

This is an agreement allowed under the Fair Work Act 2009 to exchange the conditions of a Modern

Award, so that the award no longer applies, for a written guarantee that the income the employee will

earn in a year will exceed the high income threshold during a ‘guarantee period’. This amount was

increases in July each year. Check the current amount here.

More information can be obtained by contacting the office of the Fair Work Ombudsman. All contact

details are available at http://www.fairwork.gov.au.

https://www.fairwork.gov.au/awards-and-agreements/award-and-agreement-free-wages-and-conditions


© Meta Management

Documentation Records

Document (name and action)

Issued/Lodged date Returned/Completed date

Note



Note



Note



Note



Note



Note

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Individual Flexibility Arrangement (IFA)

This is an agreement allowed under the Fair Work Act 2009 where any person covered by a Modern

Award is entitled to request a variation to award conditions covering:

arrangements for when work is performed such as working hours

overtime rates

penalty rates

allowances

leave loading

An employee or employer can initiate a request for an IFA. It is the employer’s responsibility to ensure

that the employee is better off overall than if there was no IFA.

The employer’s ‘better off overall’ assessment will usually involve comparing the employee’s financial

benefits under the IFA with the financial benefits under the applicable award or enterprise agreement.

The employee’s personal circumstances and any non-financial benefits which are significant to the

employee can also be considered.

An IFA must be in writing and signed by the employer and employee. If the employee is under 18 years

of age, it must also be signed by the employee’s parent or guardian. Once an IFA has been made, it is

the employer’s responsibility to ensure that a copy of the IFA is given to the employee. The employer

should also retain a copy.

For example, an employer and employee may agree to a change that allows the employee to work a

half day on Saturdays to make up for shorter days where to employee needs to collect his children

from school. Under the agreement the employee is not paid penalty rates for the Saturday hours

because he has gained a benefit that is more important to him.

The employer can refuse a request for an IFA only on reasonable business grounds such as a request

that creates an unreasonable burden on other employees.

More information and help on drawing up an IFA can be obtained by contacting the office of the Fair

Work Ombudsman. All contact details are available at http://www.fairwork.gov.au.

Probationary Periods

Employment contracts often provide for a period of ‘probation’ during which time an employer and

employee can ‘assess the suitability the employment arrangement’ and either party can choose to

terminate the contract by giving just one week’s notice.

Since the Fair Work Act 2009 was enacted, employers that are covered by this Act are given a

qualifying period of six months (and twelve months for employers of under 15 full time, part time and

regular casual workers).


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Note



Note



Note



Note



Note



Note



Note

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Induction

The induction process is often a formal program used to welcome, orient and prepare the employee for

the new job. Involving different people in the induction is a good idea not only because it spreads the

workload and shares the responsibility for the new person’s successful start-up but also because it gives

the new person a broader perspective of the company. Spread the induction over a week or two to

avoid information overload.

Standard induction agenda:

Introductions to people and other parts of the company will help the employee get settled

Buddy: who is their ‘go-to’ person (make sure that person knows what their responsibilities as the

buddy are)

Company values, mission and vision

Internal values such as customer service, teamwork

Breaks: when they should be taken

Facilities: e.g. lunch room, showers, car parking, staff discounts, smoking area

Golden Rules: every company has 4 or 5 key rules that really matter (never assume a person knows

your rules just because they have worked in a similar job or company)

Safety and diversity: ensure the employee understands his/her obligations and rights (see next page)

Consequences: what happens if rules are not followed (general only so they know what you take

seriously, not to scare them off)

Equipment and employer-issues: e.g. PPE, vehicles, passwords, keys, allocate and familiarise the new

employee (more details are provided further in this section)

Work station/area set up/familiarisation

Job overview and task-based training

Payroll, timesheets and personnel administration: procedures and how to raise requests and queries

(more details are provided further in this section)

Tests and quizzes are useful to check that the information provided has been understood

Example

Event Induction training

Description/Action Introduction and overview of the company, company history, provided factory

tour and met each department

Agreed/Follow up [Buddy name] has been given in case [Name] has any questions

Date due

Given/Issued A copy of the Employee Handbook

Completed by signature Name

Employee signature Date

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Employee Events

Employee events are the various activities that take place during the life of the employment. This section

gives you a standard recording process for all employee events (on the left hand side is a guide on what we

recommend that you include in this section) for you to complete as you go as leaving it to complete later

may be far less accurate and can undermine the value of the record.

The information in this section should be information that is able to be shared with the employee, e.g. their

annual leave dates. If the record concerning your employee is of a personal and sensitive nature, such as a

sexual harassment complaint, or medical records of a workplace injury, we recommend that you create,

maintain and store that as a separate file.

Event

Description/Action

Agreed/Follow up

Date due

Given/Issued



Event

Description/Action

Agreed/Follow up

Date due

Given/Issued



© Meta Management

Safety and Diversity

Every workplace has different requirements for workplace safety depending on the industry and type of

company. Each state and territory has a workcover authority that provides advice to businesses on their

obligations and responsibilities including more information on the points (this is not an exhaustive list)

provided below.

Workers Compensation is a compulsory requirement for employers

The workplace should have an Occupational Health and Safety Policy signed by the company

directors on display and provided to employees, for example, included in an employee handbook

The workplace should have an Equal Opportunity Policy signed by the company directors that every

person in the company must abide by and this should be on display and provided to employees

The workplace should have a Workers Compensation Policy that documents what happens if an

accident or injury occurs

There are certain posters that must be on display in the workplace, e.g. ‘If you are injured’ poster

(Victorian employers), ‘Watching out for you’ poster (NSW employers)

Employers have a duty to consult employees as far as reasonably practical on matters of safe work

methods and environment, identifying, assessing and controlling risks and the process for employee

consultation

Employers have a duty to protect employees preventing them from harm in the work environment

and by monitoring the health of employees and conditions in the workplace and providing

information and resources to support employees in matters that affect their health and safety

Employers have a duty to protect other people who come into contact with the workplace including

visitors, suppliers and members of the public – important to keep in mind when developing

procedures such as for working at home, work-related social events and those who travel for work

Employees have a right to be represented by peers to attend to health and safety matters including

training and inspecting areas where those they represent work

Employers must keep a register for incidents and a way for employees to report hazards and injuries

and be communicated to about how issues are being resolved

Employers must ensure employees have the necessary skills, instruction, training and equipment

for tasks to be carried out safely

Example

Event OHS training

Description/Action [Name] has completed the safe lifting training program

Agreed/Follow up Competency demonstrated (assessment on file). Employee must complete

refresher course in twelve months Date due March 2013

Given/Issued Course notes: ‘Protect your back’ (v. January 2011)



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Employer-Issued Items

Employers need to provide employees with many items required to perform their duties. Many of these

have safety, security and cost implications for the employer that need to be managed.

Passwords – systems should require passwords to be set for maximum security and need to be

changed frequently especially if they create a link to the company network

Uniforms – specify whether employees are required to return items and whether there are situations

that items with the company logo should not be worn in public

Mobile and electronic devices – rules may need to be set on types of programs that can be

downloaded and content stored, use of cameras and recording capabilities and standards of

communication, e.g. SMS, email

Vehicles – keep a copy of the driver’s current licence on file; because of the potential for accident and

injury, establish safe driving standards such as requiring all work materials to be placed in the back

seat or boot when driving to avoid the risk of driver distraction

Electrical equipment – has it been tagged?

Tips

Maintain an asset register including model numbers and codes

Keep on file information about cleaning and maintenance, warranties and service centres

Engrave the company name on the item if appropriate

Check relevant items are insured

Develop a form for each item, or type of item issued that includes information about cleaning and

maintenance (e.g. the company car is to be cleaned once a fortnight), conditions of use, security (e.g.

your security pass is not be used by any other person), loss or damage (e.g. lost cards will be replaced

at a cost of $10 per replacement), and so on

Ask employees to sign the form acknowledging when they have received the item and that they know

the relevant rules of use. You now have a handy record on file for future reference (or use the

Employee Event record as shown below)

When employees finish their employment, ensure all items are returned and access and passwords

are disabled

Example

Event Employer Issue

Description/Action Security entrance swipe card number 1111 2222 3333

Agreed/Follow up (Use this section to record when the item is returned, or in the case of

passwords, cancelled) Date due

Given/Issued



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National Employment Standards

The National Employment Standards (NES) are the ten minimum entitlements for employees who are

covered by the Fair Work Act 2009 (with some exceptions for casual employees) including those not

covered by an award. The NES are a ‘safety net’ that cannot be altered to the disadvantage of the

employee.

1. Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours.

2. Requests for flexible working arrangements – an entitlement allowing parents or carers of a child

under school age, or of a child under 18 with a disability, to request a change in working

arrangements to assist with the care of the child.

3. Parental leave and related entitlements – up to 12 months unpaid leave per employee, plus a right

to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and

adoption-related leave.

4. Annual leave – four weeks paid leave per year, plus an additional week for certain shift workers (not

for casuals).

5. Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days

unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.

6. Community service leave – unpaid leave for voluntary emergency activities and leave for jury service,

with an entitlement to be paid for up to 10 days for jury service.

7. Long service leave – a transitional entitlement for employees as outlined in an applicable pre-

modernised award, pending the development of a uniform national long service leave standard.

8. Public holidays – a paid day off on a public holiday, except where reasonably requested to work.

9. Notice of termination and redundancy pay – up to five weeks’ notice of termination and up to

16 weeks’ severance pay on redundancy, both based on length of service.

10. Provision of a Fair Work Information Statement – must be provided by employers to all new

employees, and contains information about the NES, modern awards, agreement-making, the right to

freedom of association, termination of employment, individual flexibility arrangements, union rights

of entry, transfer of business, and the respective roles of Fair Work Australia and the Fair Work

Ombudsman.

Contact http://www.fairwork.gov.au or contact the Fair Work Infoline on 13 13 94 for specific details

about how these apply to your employees.

These are similar to many entitlements provided under most awards.

The pages that follow contain some general suggestions for managing leave and termination.

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Personal Leave

Personal Leave is leave that includes sick leave, carer’s leave and compassionate leave. Managing

Personal Leave is important for ensuring employees are provided the necessary support (both those who

are away and those who may be affected at work) and to prevent the occasional instance of someone

abusing the entitlement.

The entitlements are defined in very specific ways including:

Sick leave is to be used only if the employee is unable to work because of personal illness or injury

Carer’s leave is to be used only if the employee is unable to work because they are required to care

for a family member or household who is sick or injured or needs care and support because an

emergency

Compassionate leave is to be used only for the employee to spend time with a member of their

immediate family or household who has sustained a life-threatening illness or injury or after the

death of a member of the employee’s immediate family or household

Immediate family members and household means only a spouse, de facto partner, child, parent,

grandparent, grandchild or sibling of an employee; or a child, parent, grandparent, grandchild or

sibling of the employee’s spouse or de facto partner

Notice of taking leave must be given to the employer

When entitlements to paid leave apply and when they do not

When and how much unused Personal Leave entitlements can be cashed out

Tips

It is a good idea to develop a company policy that explains how you intend to apply the entitlement. For

example your company policy may:

Define what counts as ‘giving notice’ of leave, for example, an SMS message to a co-worker after the

shift was already to have started may not count as notice

Specify what evidence is required from the employee to substantiate the leave was taken for the

reasons provided and when that evidence is required, e.g. after 5 personal leave days in a six month

period

Establish procedures for reporting back to work after being absent leave. For example, if the

employee suffered a contagious virus and works in a food environment, there may be a stipulated

period where they are not to return to food handling tasks, or if the type of work the employee

performs has a risk of exacerbating an injury, you may require a medical clearance before returning

to normal duties

Requiring employees to report in to a manager before resuming work after taking Personal Leave is

good management practice as it not only gives the employee an update of anything that occurred in

their absence but inquiring after an employee’s welfare is a basic courtesy and will benefit the

working relationship

Although a leave entitlement may not apply to an employee’s need for time off, and even if the leave

is denied, employers should consider requests within reason and give their response to the request in

person

Use this Event Record or a dedicated Leave Form for recording leave days

Note that the details that apply to your workplace may be different if you are an employer not covered

by the Fair Work Act 2009, or if the NES entitlements have been varied by a modern award, in which case

you should consult the relevant award or state legislation.

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Annual Leave

Annual leave or recreation leave is provided (except for casual employees) for employees to enjoy a

break from the workplace. This is paid leave based on the employee’s ordinary hours of work. Annual

leave entitlements accrue progressively during a year of service according to their ordinary hours of work

and accumulates from year to year. On termination of employment an employer must pay an employee

for any untaken annual leave which has accrued. An award can vary the standard four (or five for shift

workers under the NES) weeks leave entitlement.

There is no legal requirement for how leave can be requested and taken except that employers cannot

unreasonably refuse a request for leave. However, workplace policies should encourage good use of

annual leave benefits and to ensure a consistent approach to managing requests and workloads.

Tips

Have a ‘first come, first served’ policy for granting time off, which is not only a fair way to manage

requests but also encourages early application

Ask for leave requests to be in writing and provide written approvals so there are no mistakes,

particularly if employees will incur expenses, such as booking air tickets

Specify in your policy the amount of notice employees must give for leave approval

Specify if there are designated ‘blackout’ periods where due to business demands no leave is granted

Consider an employer-directed leave policy that allows the employer to require an employee to take

leave during a closedown period or quiet period or when the employee has accrued more than a

certain number of weeks (also a smart move to ensure the leave hours are paid at the rate of pay of

the time they were accrued rather than at a possibly higher future pay rate) by providing a

reasonable period of notice in writing

Require employees to take at least one period of leave in a block of two or more weeks and/or set a

maximum number of single or part days employees can take annual leave in a one year period (with

flexibility for unusual circumstances) so that they have at least one proper break every year or so

Have a clear guideline for employer-issued items when employee are on leave, for example, are

phone calls on the company mobile phone covered, can the employee use the company car, should

some keys and access swipe cards be left with the employer for security reasons?

Develop a procedure for handover for employees going on leave, for example, who will respond to

inquiries, and should emails be directed to another person or should an out-of-office auto

notification tool be used?

Decide when annual leave payments will be paid: all amounts at the commencement of leave, or the

relevant amounts at the usual pay periods?

Use this Event Record or a dedicated Leave Form for recording annual leave

Long Service Leave

Currently covered by state-based legislation, long service leave provides employees with paid leave after

ten years of service (usually available on a pro rata basis after seven years)

Check the options available for taking long service leave, such as using long service leave to work

reduced weekly hours, and discuss these with the employee in advance

The date from which an employee is entitled to be paid long service leave accrued upon termination

can differ in each state

Use this Event Record or a dedicated Leave Form for recording Long Service Leave

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Public Holidays

Public holidays are determined by government gazette including if any are to be substituted for

another day because the actual day falls on a weekend

Employees who would usually work on that day are entitled to a day off with pay (subject to

reasonable requests to work)

Consider allowing employees to nominate other days as substitute holidays, such as non-Christians

who would rather take another holy day off and confirm your arrangement in writing

Only the declared or substituted public holiday is paid at the public holiday rate

Parental Leave and Related Entitlements

Parental leave is unpaid leave provided for the birth or adoption of a child once a period of 12 months

continuous service has been completed.

Employees should provide a minimum of ten weeks’ notice of the impending leave in writing, and

provide confirmation in writing of the required start date of parental leave and return to work

Parental leave is for the parent who will be the primary carer; there is a short period of overlap of

both parents having parental leave – usually one week – allowed (may vary according to an award)

The period of 12 months can include the employee using their accrued annual leave e.g. 10 months

parental leave + 2 months annual leave, but not use annual leave to extend the 12 months

Expectant mothers must be transferred to alternative duties – at the same pay – if they cannot

perform their normal jobs

You can ask for evidence relating to the leave such as: medical confirmation of due dates: that the

employee can continue to work if it is within six weeks of the due date; any physical restrictions on

performing certain tasks; or a statutory declaration that confirms the employee is the parent taking

parental leave as the primary carer

Contact the employee four weeks before the due return to work date and confirm the return

arrangements; if the employee wishes to extend or shorten the leave they should do so in writing

giving the new dates – this can only be done once

You should respond to the request in writing and only refuse if there is a solid business reason

If the employee has been away from work more than six months it is a good idea to repeat the

induction program, adjusted appropriately, particularly if the employee is returning to a different role

or section of the business

Talk to the employee about any things that the company may need, or be able, to do to for the

employee so that both parties have an idea of the others’ expectations and ability to accommodate

Employees covered by the Fair Work Act 2009 are entitled to make a request for an Individual

Flexibility Arrangement (IFA)

Remember that discrimination on the grounds of parental status is illegal

Community service leave

Available for those employed under the Fair Work Act 2009 or if allowed under an award

The employee must provide evidence at your request to demonstrate they are entitled to the leave,

i.e. for jury service or are a volunteer with a recognised emergency management body

Jury service attracts ‘make up pay’ in which the employer is required to pay the difference between

any pay for jury service and their regular base pay rate for the first ten days of jury service

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Feedback

Feedback can quite easily be considered the single most effective employment tool. On the other hand

many problems arising out of the employment relationship can be attributed to the lack of meaningful

and purposeful feedback.

Feedback is the information returned to a person in response to an action or performance and is

especially important if the purpose of the feedback could be used as a basis for improvement.

Feedback comes from many sources such as: a direct, tangible result (e.g. the number of widgets

made in an hour); a reported result (e.g. the sales achieved in a period of time); an indirect

consequence (e.g. a mistake leading to a product failure); and the reactions of other people

The reactions of other people is the most important type of feedback for employees because it has a

subjective component (e.g. opinions, experiences, approval or disapproval) that relies on the person

providing the feedback that the employee has no other way of accessing

Feedback from those closest to the employee, particularly the manager, is the most important to the

employee

Feedback that involves praise or commendations can make some people feel embarrassed, however

this should only alter the way you provide the feedback (e.g. in private, a short written note) not

prevent you for providing it

Feedback that involves critical information is hard for many people to give and hear, however the

value of finding a way to give it honestly (and finding a way to accept critical feedback honestly) is

difficult to overstate

There is no way to convey feedback effectively other than open, face-to-face discussion; subversive

methods such as reducing work hours, assigning unpopular tasks, position changes, ‘promotions’,

broadcasts (i.e. telling many, e.g. about a problem, but actually referring to one person), creating

new policies, do not work

Avoiding giving feedback not only damages the psychological contract between the employer and

employee (the tacit agreement of mutual respect, trust and honesty) essential for a healthy working

relationship, but can breach the employer’s actual and implied legal duties, such as unresolved

tension that breaches the duty to provide a safe workplace, or implied duty of honesty and good faith

Use the Event Record as a diary of notable feedback given

How to Give Feedback

Aside from empathy and good humour, take the emotion; anger and resentment out of feedback;

this has the potential to inflame a sensitive situation and can undermine the value of the information

being shared

Find a suitable place that provides privacy and is free from distractions and give the person notice of

the meeting

Choose a suitable time such as end of day so a person does not have to return to the workplace while

upset but not before days off which prevents a person being able to follow up immediately

State upfront the reason for the meeting so (as appropriate) you can spend the rest of the meeting

discussing solutions

Explain what evidence was used as a basis for the feedback

If there is performance improvement needed the required improvement must be explained, a

reasonable time given for the improvement to take place, and the consequences of failing to improve

must be clearly stated

Be prepared to provide assistance such as monitoring, training and coaching to the employee

Finish the meeting on a confident note with clear understanding of what is required of all parties

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Issues and Dispute Resolution

In a workplace where many people interact, incidences of conflict are considered a normal outcome of a

multitude of endeavours. The ability to raise a grievance is seen as a sign of a healthy workplace where

individuals have the freedom, and are comfortable, to express their concerns.

Grievances are the expression of the complaint or matter by an aggrieved party. A grievance usually

arises because an individual feels his or her expectations have not been met or rights have been

violated, which upon discussion or investigation may or may not require action, may prove to be

unfounded, or may become an issue for resolution.

Issues are the barriers that arise between individuals or groups and their ability to perform in a

confident, safe and competent manner.

Resolution is the process undertaken by which an issue is dealt with by applying a set of rules or

standards, and through which all parties have equal right to present their case, express their views

and propose a solution.

Disputes are grievances that failed to be resolved through initial discussion or action.

A grievance may be raised:

Officially or unofficially

Verbally or in writing

About concerns personally experienced or observed about others

About a matter affecting work, workers or the workplace

With or without the need for management intervention

By any person regardless of or status or station

But in any case it should be timely, raised at local level in the first instance, and its purpose shall be one

or more of the following:

To bring about a workplace improvement

Assist compliance with a law, regulation or standard

Raise awareness of, and/or promote discussion about, and/or reduce a risk to the company, a group

or an individual

This step will determine whether the matter has reason to be escalated. Escalation means the matter

will need to involve other parties and/or undergo a resolution process.

You should have a policy on how issues can be raised and the company’s expectations for resolving them.

Awards and enterprise agreements will generally have a standard dispute resolution process.

Tips

Keep records of discussions and actions and advise all involved to make and keep their own records

Have trained people available who can help to facilitate discussion and if needed mediate

Do not make it difficult for people to raise issues for discussion and encourage and help them to do

so while the problem can be resolved at the local level

Ensure all credible grievances are followed up - a written complaint should not be a prerequisite

before you take steps to investigate and act

Ensure parties to a grievance can continue to work comfortably while a resolution takes place

Employees who raise, support or are involved in a grievance must not be victimised for their role in

the matter

Protect confidentiality and privacy and take action to prevent speculation and gossip

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General Protections

Under the Fair Work Act 2009, employees have defined rights and are protected from adverse action.

Adverse action includes dismissing or refusing to employ someone, discriminating against them, or

otherwise injuring them in their employment (for example, by demoting them, or reducing their overtime

or ordinary hours of work) in a way that breaches their rights.

In summary:

A person must not take adverse action against another person because the other person has a

workplace right or exercises a workplace right

A person must not take adverse action against another person because they engaged in or proposed

to engage in industrial activity (such as belonging to or participating in a union)

An employer must not take adverse action against an employee or prospective employee because of

their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or

carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

An employer is only allowed to do so in limited circumstances when the action is:

Taken because of the inherent requirements of the particular position, or in accordance with

doctrines, tenets, beliefs or teachings of a particular religion or creed and taken in good faith to

avoid injury to the religious susceptibilities of that religion or creed, or

Not unlawful under any anti-discrimination law in force in the place the action is taken

An employer must not dismiss an employee because they have been temporarily absent from work

because of illness or injury if:

They have a doctor’s certificate (or other evidence under regulation 3.01 of the Fair Work

Regulations 2009), and

They are on paid sick leave or they have had less than three months unpaid sick leave in the last

year

An employer must not tell an employee that they are being hired as an ‘independent contractor’ if

they are really an employee

An employer must not dismiss or threaten to dismiss an employee in order to hire them as an

independent contractor doing the same or substantially the same work

An employee must not take adverse action against an employer such as refusing to work

A general protections dispute occurs when adverse action is taken—or when a threat to take adverse

action occurs—because a person has one of these rights, exercises such a right or, in some cases,

proposes to exercise such a right. A claim may be made to Fair Work Australia (the industrial tribunal) to

intervene and deal with the dispute (within 60 days), with the option for further recourse to the Federal

Court or Federal Magistrates if unsuccessful. Individuals including managers can be liable for penalties up

to $6,600 and corporations up to $33,000. Uncapped compensation can be awarded the employee or

other individual bringing the action and, potentially, the award of an interim injunction to restrain an

employer from dismissing an employee if a threat of termination has been made or appears likely.

Employers should note two important features of an adverse action claim:

1. A reverse onus of proof operates, which means the person bringing the action does not have to prove

that the adverse action took place, rather the defendant must prove that it did not; and

2. A claim under adverse action provisions will succeed where it can be shown that the holding or

exercising of a workplace right was just one of the reasons for the action, it does not have to be the

dominant reason.

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Ending Employment

Bringing the employment relationship successfully to a close.

1. Notification of employment ending

2. Managing termination by the employer

3. Manage employee exit


Helps you to bring an employment relationship to a close

Guides you through the difficult process of managing employee underperformance

Will help you to defend your case in unfair dismissal claims


There are three ways an employee’s employment contract can be terminated:

1. At the initiative of the employee by resignation, retirement or abandonment of employment;

2. Because of frustration of the employment contract;

3. At the initiative of the employer through a redundancy or dismissal.

As much as we would wish to be able to always part on good terms at the right time for employer and

employee, the reality is often the decision to end the employment relationship can be difficult for one, if

not both, parties. The most difficult of terminations is the dismissal for poor performance because it can

be emotionally and legally fraught and because many business operators do not have the training to

manage it.

The law allows for ‘reasonable management action’ that differentiates it from actions that may be

identified as bullying or harassment. This can include transferring, demoting, disciplining, redeploying,

retrenching or dismissing the employee, or deciding not to allow the employee to attend training, be

awarded a promotion, or reclassifying the employee, or granting leave of absence or other benefit in

relation to the employment. The manager may set performance goals and deadlines, allocate or change

work that has been allocated, change reporting lines, or inform a worker about unsatisfactory work

performance or inappropriate behaviour.

When the decision to terminate the employment contract has been communicated, the employer should

make a careful note of dates and ensure all communication about the separation is in writing. If you

choose not to allow the employee to work out the notice period, you will need to pay out the equivalent of

that time. If the employee leaves before the end of the notice period they may be forfeiting the equivalent

of that time in pay which you may deduct from final monies owing.

Before giving final pays, ensure that all company property has been returned. Consider having a legally-

drawn up Deed of Release for the employee to sign as soon as possible and before final pay. Note that final

payments which include a lump sum payment are calculated differently to usual pay for taxation purposes.

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Termination at the Initiative of the Employee

The notice period is provided to allow the employer to prepare for the employee’s exit, e.g. finding a

replacement. Complete a handover schedule so that the notice period is used effectively.

Resignation

The employee chooses to end the employment contract

Always require a resignation to be given in writing so there is no dispute that a resignation occurred

and so dates and notice periods are clear

Employees must give the required amount of notice or may have the equivalent of the unworked

period of notice deducted from their pay

A resignation can only be retracted with the employer’s agreement

A ‘heat of the moment’ resignation (that is quickly regretted and retracted) cannot be accepted as a

genuine resignation

An employee who has been forced to resign or who felt cornered or pressured into giving a

resignation (called being constructively dismissed) will have grounds for a claim of unfair dismissal

Tips

Managers can feel betrayed or let down when a trusted and valued employer decides to leave,

particularly if it is to join a competitor.

Be gracious

Identify what may have triggered the resignation and if there is any flexibility that the company can

offer to retain the employee

Consider whether you will make an counter offer – note that matching salary offers will generally

backfire, as it simply confirms for the employee that they have been underpaid or undervalued

Retirement

There is no compulsory retirement age, although some jobs are affected by upper age limits such as

in the defence forces

Tips

Choosing to retire is a big decision for many employees so having a policy that explains the process

can be very helpful

Retirement can be a big culture shock for the employee – consider whether the company has a role

(depending on the plans of the retiree and assuming a good relationship exists) for the employee to

consult or take on a casual position that utilises the knowledge and experience they have built up,

e.g. training or planning roles

Abandonment of Employment

When an employee appears to have abandoned their employment, you should attempt to contact them

or a relative or next of kin to find out why the employee has failed to report for work. If necessary send

a letter by registered mail to ensure the letter is received. Provide a reasonable deadline for the

employee to respond and provide an explanation.

If the deadline has elapsed and the employee has not responded or returned to work, you can assume

abandonment and send a letter of termination as confirmation remembering to comply with the

requirements of termination that may apply through legislation, an award or agreement.

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Details of Resignation, Redundancy or Retirement

1. Reason for termination

2. Date of notice Final day

Actual last day (if different to final day above)

Reason

3. If a redundancy

Details of consultation undertaken (date and action)

4. Details of assistance provided (i.e. outplacement or transition assistance)

5. Issued to employee (and date)

Termination Letter Deed of Release

Certificate of Service Separation Certificate

Other

6. Eligible for re-hire?

YES

NO

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Frustration of (Employment) Contract

A contract is said to be frustrated when it is incapable of being fulfilled. An employer, for example,

whose business cannot open due to a natural disaster would not be able to provide the job; an employee

may suffer a permanent injury that means they can no longer perform their duties.

If the employment relationship is affected by frustration of contract, ensure that steps are taken to

finalise the employment so that the employment has a definite end date and the employer obligations

are satisfied.

Unfair Dismissal

A dismissal is considered ‘unfair’ (note that the following is based on the requirements under the Fair

Work Act 2009, but is also a good guide for those covered by state-based legislation) when:

There is no ‘valid reason’ which means ‘sound, defensible and well-founded’, therefore mere

speculation, accusations and trivial matters cannot be considered ‘valid’

Even if a valid reason exists, the decision to terminate employment will be considered unfair if:

It was ‘harsh’, that is, the termination was out of proportion to the offence or the economic impact

on the individual cannot be justified against the seriousness of the offence; and/or

It was ‘unjust’, for example, the employer did not take the time to verify statements or get the

employee’s side of the story – incidences when the employee is presented with the (alleged) offence

and dismissed during the same meeting will generally be taken to have been unjust as any response

from the employee could not have been taken into consideration; and/or

It was ‘unreasonable’, for example, the employer did not notify the employee of the reasons for the

(potential) dismissal and allow the employee reasonable time to rectify the situation, or allow the

employee to have a support person attend (any person can be a support person for the employee

except for a lawyer acting in a legal capacity), for example there was no notice of the meeting or no

warning that a disciplinary meeting will be taking place

When considering fairness, the tribunal will also take into consideration the employee’s overall service

record and the size of the employer and availability of qualified personnel for managing the dismissal.

Who Cannot Make a Claim for Unfair Dismissal (does not include unlawful dismissal or adverse action)

An employee dismissed during the probationary/qualifying period (i.e. 6 months, or for employers

with under 15 employees including casuals employed on a regular and systemic basis)

If the claim has been made outside the 14-day limit from the date the employee was made aware of

the dismissal unless they successfully seek an extension for ‘exceptional circumstances’

A person not covered by an award or agreement who earns more than the high income threshold

A person who has not been dismissed (e.g. they just stopped turning up for work) unless they can

demonstrate that an employer’s actions had the effect of terminating their contract (e.g. they just

stopped getting rostered)

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Exit Interview

1. Conducted by Date

2. Feedback

On the job

On the workplace in general

On management

Other

3. Would you recommend us as an employer to others?

YES

NO

4. Comments

From the employee

From the interviewer

From the employer

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Termination at the Initiative of the Employer

Redundancy

When an employer no longer requires a job to be done by any other person (not including

transferring parts of the job to others), and the process used to effect the redundancy complies with

any requirements, an employee can be made redundant

An employer can make a claim from Fair Work Australia for redundancy payments to be reduced,

such as if the employer has helped the employee to find a new job

Requirements for redundancy include that the redundancy is genuine, the correct amount of

redundancy payment is made/notice is given, and that consultation requirements specified in an

applicable award or agreement are followed, otherwise the termination can be challenged as an

unfair dismissal

Transfer/Sale of the Business

A transfer or sale of a business can have the effect of terminating the employment contract and

replacing it with a contract with a new employer, however entitlements and continuity of service can

also transfer

Transmission of business obligations and entitlements can be complicated therefore if you are taking

on existing staff with a new business always obtain legal advice about your situation

Dismissal for Poor Performance

Termination of the employment contract by the employer because the employee has not met

required standards of performance even after being told

Must be managed in a particular way (see Unfair Dismissal); there is no such thing as ‘three warnings’

rule

Notice of termination must be in writing and cannot be back-dated

Small employers (under 15 employees) can demonstrate they followed the Small Business Dismissal

Code (provided under the Fair Work Act 2009 download a form at http://www.fairwork.gov.au)

Giving Warnings

Employees must be given warnings (except in cases of serious misconduct) if their performance may

result in the termination of their performance and advised this may be the result if performance does

not improve to required levels

All warnings including verbal ones should be confirmed/given to the employee in writing

The employee does not have to sign the warning for it to be valid

Dismissal for Serious Misconduct

Serious misconduct is an act or omission by the employee that is not just unacceptable, it has the

effect of destroying the ability for the employment relationship to continue

The nature of the employee’s conduct is such that the person can be dismissed with immediate

effect; in extreme circumstances the employee can be dismissed without notice, otherwise the

termination must be with notice or pay in lieu of notice

There is no such thing as ‘instant dismissal’ because all dismissals must provide opportunity for the

employee to respond to claims or allegations (see Unfair Dismissal)

Notice of the dismissal must be given in writing and cannot be back-dated

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Details of Termination by the Employer

1. Reason for termination

2. If underperformance

Details of Performance Warnings (date and action)

Evidence used to support the assessment of underperformance (attach detail)

3. Date of notice Final day

Actual last day (if different to final day above)

Reason

7. Issued to employee (and date)

Termination Letter Deed of Release

Certificate of Service Separation Certificate

Other

8. Eligible for re-hire?

YES

NO

9. Small Business

Has the Small Business Dismissal Code been followed? (attach)

© Meta Management

More Information

The following are useful for more information and advice. Their websites are good resources for booklets,

posters, templates and examples that can help you.

Fair Work Australia

Fair Work Ombudsman

Centrelink

Australian Taxation Office

State/Territory workcover authority

Australian Human Rights Commission

If you need help from us, or wish to order printed copies of this Record Book:

Contact us via our website www.metamanagement.net.au

Contact us via email [email protected]

Skype metamanagement

The employment experience should be a good one where success of one is good for the other. Managing

people is not always easy but having a system for the way your employment decisions are made will not

only help you, it will create certainty for employees and will, in worst case scenarios, support you in any

investigations, audits, inspections or cases you may have to defend.

We wish you every success through employment.

http://www.metamanagement.net.au/

mailto:[email protected]