As we have covered in previous client alerts, the COVID-19 pandemic has created a raft of unique challenges for employers striving to maintain safety, efficiency and productivity, and employees who, perhaps for the first time in their working lives, are now consistently working from home. For many of these employees, feelings of social isolation have led to reports of anxiety and depression, and with the Silly Season just around the corner, this means some serious red flags for employers. In this client alert we examine some of the current difficulties, and projected difficulties that COVID-19, will have on employees, and how best employers might deal with them.
For many of us, working from home at least some of the time this year has become the norm. For quite a significant number of employees, working from home has become a regular and permanent (or at least current) way of working. We have written previous client alerts regarding the steps employers should take to ensure they are meeting their legal obligations if they have employees working from home. In this client alert, we examine some recent cases in the Fair Work Commission (FWC) which have had to deal with the legal implications when working from home, is not all its cracked up to be.
As the nation begins to emerge from the COVID pandemic and businesses slowly recommence their ‘as usual’ activities, employers are understandably keen to return to commerce as soon as possible. No doubt, many sectors of industry were hit hard by the pandemic; industries such as hospitality, retail, travel and tourism, professional sports and the arts, and despite the welcome assistance of the Federal Government’s JobKeeper programme, in its various forms, redundancies were inevitable.
Under the backdrop of the #MeToo movement surrounding actors and celebrities, along with recent allegations against former High Court Judge Dyson Heydon, now presents a timely reminder that sexual harassment, particularly in the course of one’s employment, is entirely unacceptable.
Oh my gosh – that could not have happened! We hope this is not something the business is saying after the end of year celebrations. Unfortunately, all too often a form of this reaction is all too common. In our last article, we looked at various control measures an employer can put in place to minimise the risk of inappropriate behaviour of employees at end of year or Christmas events which, in turn, minimise an employer’s exposure to subsequent legal claims and possible litigation. In this, our Part 2, we look at management of the aftermath of the event and what practical steps can be taken to minimise an employer’s exposure where an incident has occurred.
The explosion of social media use over the years presents many challenges to the employment relationship. The use of social media has blurred the boundaries between work and non-work life. This has led to many employers having to deal with situations where employees have posted something in their private capacity on their own social media accounts, which has (or is likely to have) a negative impact on the employer.
Phew – annual Performance Reviews done! This is an often heard at this time of year. Unfortunately, performance management and annual or bi-annual reviews instill dread in both the employee and managers tasked with conducting performance reviews. However, despite the angst and stress that accompanies performance reviews, not much else is achieved as a result of the review, other than to tick the relevant box stating they have been done. This surely cannot be the purpose of performance reviews. It certainly does not constitute appropriate performance management.
Disciplinary action for poor or inappropriate performance is all too often seen in very one-dimensional terms. Often, it can be a fantastic opportunity for the business to address difficult issues in a constructive and ultimately extremely cost effective way. However, in most circumstances the use of warnings serves only to alienate and disincentivise employees, to the extent that they either leave the business or the business terminates the employment. When it comes to disciplinary action in the workplace, it is our experience that many employers seem to limit themselves to the use of only warnings or dismissal even though there may be a range of other options available to employers.
People spend a significant amount of time with each other at work, it is therefore perhaps unsurprising that workplace relationships are common with which many employers need to deal. Most employers are often mortified at the prospect of having to discuss intimate or personal details with their employees and usually adopt the “don’t ask, don’t tell” approach. However, not only can a workplace romance impact on other employees, if such relationships sour, they can develop into bullying and sexual harassment claims, leaving the business and human resource professionals left to pick up the pieces. It is thus important for employers to know how to effectively manage these situations and ensure reasonable measures are in place so the business is not adversely affected.
The mobile phone is now ubiquitous and almost everyone has one. Like parents with teenagers, who struggle to engage with their children who are constantly on the phone, how do employers ensure that employees are not placing themselves and the business in danger by using their mobile devices?
Many employers struggle with employees who use their mobile phones excessively during work hours or employees making excessive personal calls on their mobile phones while at work. Employers should also consider the safety implications of employees who are required to drive as part of their duties, and the use of mobile devises.
Most people love a chat. However, understandably, most managers and employers often avoid having difficult conversations with their employees because it can be awkward, confrontational and time consuming. Unfortunately, avoiding what needs to be said can grow into a major issue causing legal risks and reducing an employer’s ability to successfully defend legal claims should they arise.
There is a common misconception amongst employers that the dismissal of a troublesome employee can only occur once the employer has followed the “three strikes and you’re out” rule – in other words, the employer must give the employee three official warnings before they can terminate the employment relationship. There is a broad management philosophy that three warnings prior to termination is best practice, and this may well be true, however, there is no legal requirement to provide a specified number of formal warnings. In this way, the notion of “three strikes” simply does not feature anywhere in Australia’s employment law landscape.