My Receptionist wants to reduce her days from 5 to 2 when she returns from maternity leave, do I have to agree?
There are two parts to this question: what is the employee’s right to return to work; and what are your obligations to accommodate a requested change. Firstly, if your employee has worked for at least 12 months prior to taking parental leave, she is entitled to return to the same pre-leave position. This means you need to ensure the same role is available for her on return, unless it genuinely no longer exists (for which you should obtain legal advice). If your employee has not worked for 12 months prior to taking leave, then you are not obligated to keep the role available for her.
Provided that your employee is covered (having worked for 12 months before taking leave), she is not automatically entitled to return to a changed role. Your employee can however make a request (under a separate legal provision in the National Employment Standards) for flexible working arrangements due to family commitments. This request must be made in writing, and must clearly identify the desired change. For example, a request to change from full time to part time will probably be too vague, whereas a request from full time to Mondays and Tuesdays open to close will be acceptable. You then have 21 days to consider the request and respond in writing. You can refuse the request if it is not reasonable for the practice. There is no prescriptive criteria for this. Examples include: a part time role is not available; you cannot increase the hours of other staff or recruit others to fill the gap; there would be negative economic consequences. Obviously, you need to be specific on the reasons, and they will naturally differ on a case by case basis. If you cannot accommodate the request, clause 6 of the Health Professionals and Support Services Award (which was totally updated in November 2020) requires you to genuinely consult with the employee to try and find other solutions. It is best to take advice to make sure you follow the correct process as flaws in “how” decisions are made and communicated often substantiate complaints, regardless of “what” is decided. If, on the other hand you can accommodate the request, then you must do so.
With the new casual laws, do I need to offer existing casual staff permanent roles?
The rules are different if you are a small business (14 or less employees based on a headcount and including directors and group entities) or not. However, in both cases, the employee only becomes eligible after 12 months of service. If you are a small business, you do not need to formally offer any casuals permanent roles. However, if they request conversion to a permanent role and have worked for at least 12 months for you, you must genuinely consider the request and can only refuse if based on reasonable business grounds, the process of which is the same as described above.
For practices with 15 or more employees, at the 12 month anniversary you must write to the casual employee and either offer conversion to a permanent role, or explain the reasons why you have not. Again, the reasons need to be based on reasonable business grounds as explained above. If a request is refused, it can be made afresh after 6 months.
The key difference is that for small businesses, the request is at the initiative of the employee, whereas for other businesses, the proposed change is initiated by the employer.
In any case, as a matter of best practice you should give all your existing casuals a copy of the Casual Employee Information Statement, and provide a copy of the same with the Fair Work Information Sheet on commencement of employment. Here is a link to the Casual Employee Information Statement https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/casual-employment-information-statement
In summary, to keep things simple, we suggest you give the above Statement to all existing and new casuals, and diarise their 12 month anniversary. If you are unsure what to do, feel free to contact ClinLegal.
My employee has alleged bullying and given me a medical certificate for worker’s compensation. I don’t agree he was bullied. What should I do?
This question raises two issues: the short term matter of how to manage the claim, and a longer term matter of how to avoid allegations of bullying and workers’ compensation claims.
As to the first, it is a legal obligation to maintain workers’ compensation insurance. If you do not agree that your employee was bullied, you are likely obligated to advise your Insurer that you do not agree, and why. In doing this, your file notes of any related incidents will be really important. In many cases it comes down to evidence. You should document events that do or may amount to improper conduct or allegations of them as and when they arise to minimize risk. You may also be obligated to write a statement for your Insurer. In any case, the matter will most likely be handled and disputed by your Insurer on your behalf so will hopefully not require too much effort and time on your part. For this reason, facing a workers’ compensation claim due to bullying is often regarded as more manageable than facing a Fair Work or WHS complaint for bullying.
As to the second, this involves a bit more. You can minimise the risk of workplace injury by properly screening your staff at the recruitment stage for pre-existing illnesses (including mental health) so you are aware and prepared. If you use ClinLegal contracts you will see a Fitness to Work clause in all the contracts, which includes a duty to inform the employer if that changes. At the same time, you should invest in developing a positive workplace culture where staff are trained and rewarded in acting professionally and appropriately, and advising you of risk due to non-compliance of others with applicable bullying, harassment, discrimination and conduct policies. These preventative steps include inducting your team in these policies at the commencement of employment, and at regular intervals by way of staff training.
If a complaint of bullying or similar is made, you should take it seriously and take advice to ensure you are properly managing it, including conducting an impartial investigation if appropriate.
If you have any questions about this article or any other employment related matter, please contact us.
Head of Legal Services, ClinLegal