Recent cases in the Federal Circuit Court have highlighted the need for employers to have in place sound procedures when considering changing working conditions, disciplinary or employment termination matters, so as to reduce the prospects of successful adverse action claims against them under the Fair Work Act.
This is particularly important where an employee makes a disputed claim that the employer has taken adverse action (such as terminating the employment) against him/her because he/she has exercised a workplace right. The success or otherwise of such a claim, bearing in mind that the employer has the onus of proving that the action was not taken because the employee had exercised a workplace right, is often determined by the evidence of the employer decision maker.
The takeout from this is even if you don’t have a dedicated HR department, serious employment issues should be determined by carefully qualified and, where practical, a limited number of decision makers.
Ideally, the decision makers:
- Should be aware of their obligations and the liabilities and penalties their employer may face if employment issues are not handled appropriately;
- Should keep notes and records of the reasons for their decisions with reference to any backup material; and
- Should be contactable and available to give statement and evidence on behalf of the employer even if they have left employment before any claim arising out of their decision has been made.
We recommend you seek professional support to help you establish the appropriate procedures.