Do you know the penalty or fine for not having a signed employment agreement for an employee? The new year could be a good time to check your employment agreements, make sure you have a current signed one for every employee, and that they are up to date and fit for purpose. Try this Q&A to test the basics.
Can I do That?
There are a number of questions we are asked frequently, for which there is a short yes, no or maybe answer – but the answer is usually no. Often we know that you know the answer is no, but you are hopeful we might come up with a clever way of making it a yes. Have a look at this list of questions and see if you would have answered correctly.
No. Irrespective of the circumstances, if there is a serious misconduct issue, or any kind of issue that may result in a disciplinary warning, you must go through a disciplinary process. In its simplest form that requires:
- putting the allegations to the employee (in writing ideally),
- providing time for the employee to consider the allegation,
- having a meeting to listen to their responses to the allegations (with a representative or support person),
- adjourning the meeting to consider the responses,
- reconvening the meeting to advise the employee whether the allegations are substantiated and advising them of the proposed outcome (e.g. dismissal),
- listening to the employee’s response to your proposed outcome,
- adjourning again to consider the employee’s response,
- reconvening the meeting to advise them of the final decision, and
- following up with a letter confirming the decision.
Please don’t take the letter to the meeting already written as this demonstrates that you have predetermined the outcome.
Also remember to check your policies. If you have a Drug and Alcohol Policy that states you will consider rehabilitation first, then you must do that.
No. What you are doing is suspending the employee. Prior to suspending an employee you must consult with them about your proposal to suspend them. Consultation doesn’t mean agreement, but you must tell them why you are considering suspending them and give the employee an opportunity to respond, before you make your final decision. Make sure the Employment Agreement allows for suspension and be aware that ordinarily it will be with pay.
No. If the period of employment is for the picking season, and that season has not yet ended, the fixed term has not come to an end. It is important the clauses in the fixed term agreement are as exactly as you mean them to be. Instead of saying that the fixed term ‘will come to an end at the end of the picking season’, you would state it ‘will come to an end when we have more pickers than are required to complete the picking season which will likely be in the month of June. We will provide you with one weeks’ notice in writing of the end of the fixed term agreement.’
No. If there has been an offer and an acceptance, even if this is not in writing, you have formed a contract. If you withdraw the offer, they can raise a personal grievance for unjustified dismissal, even if they haven’t yet worked for you. We advise making any offer of employment conditional on agreeing terms and conditions and that Employment Agreement is signed and returned by a specified date. This would give you some more leeway to withdraw an offer (but not guaranteed).
No. Abandonment is where an employee has no intention of returning and an employer has an obligation to make reasonable efforts to contact the employee before they can conclude it is abandonment. If the employee responds to your enquiries saying they will be returning to work, it is not an abandonment issue, although likely to be a disciplinary one (refer to question 1 for the process).
If you have an employment issue that you are unsure of how to resolve, please get in touch and we will be happy to help. [email protected]
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