Mark Donovan

Barrister specialising in Employment Law and Civil Litigation, Co-Founder of Musings about Tech, Employment and the Law

[Mark Donovan @mdbarrister]

@problogger What is that you’re reading on it? A devotional?

[Brent Beshore @BrentBeshore]

https://t.co/EitcFHsnJe

[Mark Donovan @mdbarrister]

@freddiebambo Crashed

[Mark Donovan @mdbarrister]

@tomcrawshaw01 Skill

[Mark Donovan @mdbarrister]

@NoahEpstein_ Desktop

[Mark Donovan @mdbarrister]

@moondrencht Wilson

[Mark Donovan @mdbarrister]

The adult minimum wage increases by 35c to $23.50 per hour today.

It's no joke.

[Mark Donovan @mdbarrister]

Just because an employee doesn't turn up for work, doesn't mean you can dismiss them.

Try contacting them. There may be a good reason they're not in today.

If that fails, try another way to contact them. Maybe ask their colleagues to try too.

If still nothing, and they truly have gone AWOL and your employment agreement allows it (usually requires several days of absence), consider dismissal.

Be slow to dismiss on a technicality.

[Mark Donovan @mdbarrister]

@marclou Welcome! Glad you’re enjoying our neck of the woods.

[Mark Donovan @mdbarrister]

@awilkinson https://t.co/lCs6WrI794

[Mark Donovan @mdbarrister]

For my commercial lawyer friends:

When advising a vendor selling their business, consider how they’ll meet their obligations to their staff.

Employees can’t be treated like a chattel to be transferred with the assets. They can choose whether to go to the new owner.

And the employment agreement will also have express duties - known as “employee protection provisions” - that the vendor must abide by.

The tension between closing the deal and consulting staff can often be resolved by making the sale conditional on the vendor meeting its consultation obligations.

When managed this way, I’ve seen the transfers work well.

So before the parties sign, ask: what about the employees?

[Mark Donovan @mdbarrister]

One thing employers often miss when suspending staff:

They don’t consult.

That is, they don’t suggest suspension and ask the employee if it’s needed.

They just say, “You’re suspended.”

That’s unfair to the employee, who might have seen another way.

Now, you don’t have to agree with the employee. Your reason to suspend may be strong.

But you do have to consider their views before you suspend. And you can do this in one meeting if urgent.

Suggest before suspend.

[Mark Donovan @mdbarrister]

Sometimes employers will pay you not to work.

“Where can I find a job like that?”, I hear you asking.

It’s not exactly a job.

It’s called garden leave. A type of leave that means you’re employed but not required to work (freeing you to toil in the garden, if you want).

Why would your employer do this?

They may not want you at work if you’ve resigned and you’re going to a competitor or if a workplace change is coming.

But they keep you employed during your notice period because you must still:

▪️Be available to work or respond to queries if necessary (a handover).
▪️Act in your employer’s best interests to not compete (you can’t start that next job yet!)

In short, the employer wants to have its cake and eat it too, but has to pay for it.

And if you’re gardening during that time, well, I guess that is still work?

[Mark Donovan @mdbarrister]

It's harder to justify making an employee redundant while they're on parental leave.

Not just because they're out of the office (which requires more effort to fairly consult), but because the legal test is stricter.

Like other redundancies, you must have a genuine reason and follow a fair process.

But for an employee on parental leave, you must also prove:

▪The reason for redundancy arose after parental leave started (and not just because you realised you could redistribute their tasks while they are away)
▪There was no prospect of them being redeployed to a similar, vacant role

They may be out of sight, but the law demands they not be kept out of mind.

[Mark Donovan @mdbarrister]

3 potential roles to fill in workplace investigations:

▪️The investigator (the impartial fact-finder)
▪️The decision-maker (decides what to do with the results of the investigation)
▪️The employer liaison (the go-between)

Be clear at the outset who will perform which role.

Role clarity ensures everyone stays in their lane, and helps to ensure the investigation is truly impartial.

[Mark Donovan @mdbarrister]

Personal grievances aren't just for dismissals.

There's actually 12 types of PGs that employees can raise:

▪️Dismissal
▪️Disadvantage
▪️Discrimination
▪️Sexual harassment
▪️Adverse treatment by reason of family violence
▪️Racial harassment
▪️Duress by reason of union membership
▪️Non-compliance with employment continuity laws
▪️Non-compliance with certain hours of work laws
▪️Adverse treatment in relation to availability to work or non-compliance with shift cancellation laws
▪️Adverse treatment or coercion in relation to health and safety
▪️Retaliation in relation to a protected disclosure

Each one must be raised within 90 days, bar sexual harassment which can be raised within 12 months.

How many did you know?

[Mark Donovan @mdbarrister]

If you sell your business and no longer need staff, they’re redundant.

But if they transfer to the new owner, it’s only “technically” a redundancy.

The employee goes to work the next morning as if nothing happened.

In those cases, if you normally offer redundancy payments, you mat want to avoid paying them. Because even though you made them redundant, they still have their job - just with someone else!

Including a “technical redundancy” clause in your employment agreements does the trick.

The clause states that if you sell or transfer your business, and they get a job (or offer) with the new owner, they do not get a redundancy payment.

Something to consider if you might sell your business in time.

[Mark Donovan @mdbarrister]

Your employees don’t have to put their personal grievances in writing.

And they don’t have to use the words “personal grievance.”

They can just tell you their concerns.

And if they give you sufficient detail and an opportunity to respond, they might just have raised a personal grievance without your realising it.

And if they’ve done that in time (90 days for most grievances), they might be able to take their claims further.

Now, proving they did all this would be the issue. They’d be wise to put it in writing for that reason.

But the point is: you shouldn’t ignore your employees’ concerns - even if they never write to you about them and even if they don’t use the magic words “personal grievance”.

[Mark Donovan @mdbarrister]

2 decisions to make in an employee disciplinary process:

▪️Did the employee do something they shouldn’t have?
▪️If so, what will you do about it?

No need to overcomplicate it.

[Mark Donovan @mdbarrister]

“Can’t we just make them redundant?”

That’s a question I sometimes hear from employers with a poorly performing employee.

But while it might seem like the easy solution, it could be harder in the long run.

Using redundancy as a shortcut may unravel on you, particularly if the justification for redundancy is weak and you’ve predetermined the decision. That’s a recipe for a personal grievance.

In which case, it’s better to be honest and address poor performance head-on.