Merv Saltmarsh ARTICLE
Work drinks are part of the workplace The following tips and examples should provide a heightened awareness for all employers and staff As the seasonal activity increases and that includes the upcoming Christmas - New Year period, all employers need to be fully aware of practices and policies that comply with Fair Work Legislation. In particular, employers need to be vigilant and be aware of the laws in place regarding bullying and sexual harassment in the workplace. Businesses need to have strict policies and procedures in place to protect them from liability. The implications for the employer and importantly the employee can be damaging to the extreme and hence the need for company values and standards to be front and centre. Friday after work drinks is a social activity partaken by many industries and is a way for colleagues to meet and greet in a space away from the workplace. However, could it be, that the pub up the road from your office is still considered the ‘workplace’? In cases taken to The Federal Court, including one where a woman won a sexual harassment case for several incidents with a male colleague in nearby bars. The bars were deemed to be the workplace because management had invited the staff to attend. Employers must be aware that establishments outside the workplace can still be considered such if there is sufficient connection to work and work colleagues. This can also be the case particularly where the employer provides alcohol and with that brings workers compensation potential incident and claims. Why? Supply of alcohol can be linked to the reason of incident and lack of genuine duty of care in the event of an incident or accident. In a published case $500,000 was awarded to a chartered accountant from an entertainment company. The lady was sexually harassed four times by a casual accountant employed at the time. The casual employee persisted to pursue the employee in an explicit and crude way. The inappropriate work relationship and the mix of alcohol ultimately lead to her impaired judgment and she became vulnerable when intoxicated. On one occasion she awoke with no recollection of the night before but showed physical symptoms which were consistent with sexual contact . The accused was found to have assaulted her in the workplace, without her consent. Be aware any similar cases of pursuit of an employee or verbal confronting and or incident are high potential reasons for legal action, so be warned. Takeaway; You initiate the function then you are at risk.
Replacement employees during parental leave Many employers are unaware of how they should employ (and their obligations to) individuals who are replacing an employee who is on unpaid parental leave The Fair Work Act (the Act) imposes an obligation on employers to notify a prospective replacement employee that: • the period of their engagement is on a temporary basis only. This means that the employer cannot advertise or hold out that the engagement will be on a fixed term basis; • the employee on parental leave has the right to return to their original position at the end of their leave; • the employee has the right to return and the employer has the right to request that the employee return to their original position (or to cancel the leave if it has not commenced) if the child is stillborn or dies after birth; and
• the employer has a right to request the employee to return to their original position in the event that the employee on maternity leave ceases to have responsibility of the child. As an example, if an employee on parental leave gives birth, but the child dies after 2 months during the period of parental leave of 12 months, the employee reserves the right to end their maternity leave early and return to their original position. The importance of this is that if, in the above example, the employer engaged the replacement employee on a fixed term basis and the employee on parental leave chooses to come back early, then the employer could potentially be breaching the contract of employment with the replacement employee (and may be liable to pay the remainder of the term of the contract of employment Therefore, it is important for employers to keep these obligations in mind before engaging a replacement employee. Managing the employee’s expectations from the outset, by notifying them as required by the Act and ensuring their term of employment is set by reference to replacing the employee on parental leave (rather than a fixed term), will prevent issues later.
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