19 Dec December Firm Update – The Three Big Issues from 2016

Its Christmas time!  That means 2017 is nearly here, which means it is time to reflect on the year that was. So the team at HR Law have looked back over 2016 and identified the three big issues we noticed employers faced this year.

1. Workplace Investigations

It does not matter what the size of the business, all employers face and receive workplace complaints. Once a complaint is received, it must be acted upon, but what action is taken can vary depending on the circumstances and nature of the complaint made.

It should go without saying, however the crucial final step, to act upon investigation findings, is often overlooked.

An investigation may find inappropriate behaviours have been displayed in the workplace, or conversely that the respondent to the complaint has acted appropriately. Investigations often also reveal more about the workplace, including the culture of various teams or departments and the attitude of staff towards management.

The findings of any investigation should not be ignored. Use the conclusion of an investigation as an opportunity or platform to discipline where appropriate. Also consider conducting workplace training, introducing new management strategies and rectifying deficiencies in your policies and procedures or operating practices identified during the investigation.

2. Bullying

There seems to be a lot of misunderstanding about what bullying is.  Bullying in the workplace is not to be tolerated.

The Fair Work Act 2009 defines bullying at work to occur when:

1. An individual or group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers at work; and

2. The behaviours create a risk to health and safety.

Bullying does not include “reasonable management action”, so long as the management action was carried out in a reasonable manner.

Many employers have a bullying policy in place that contains a definition of bullying.  This should reflect the definition under the Fair Work Act 2009, but in many cases does not.

If you receive a complaint of bullying, you should review your business’s bullying policy to see how bullying is defined in your workplace.  For instance, it may not be a requirement under your policy that the behaviour creates a risk to health and safety. What this means is behaviour that would not be considered bullying under the Fair Work Act 2009 may still be classified as bullying under your policy.

3. Probationary Terminations

Unfortunately, a lot of employers had to deal with probationary terminations in 2016.  Many however, were left frustrated when it came time to terminate and they realised that the employee had just passed their probationary period.

If an employee is let go during their probationary period, when that probationary period is in line with the minimum employment period under the Fair Work Act 2009, they cannot bring unfair dismissal proceedings against their employer.  As soon as the probationary period passes, the risk of an unfair dismissal claim exists.

The simplest way to ensure you do not end up in this situation is to diaries regular catch ups during an employee’s probationary period.  Also, diaries a month out from their probationary period ending so you can determine with plenty of time if you will be terminating their employment in the probationary period.

Did you face any of these issues this year? Do you agree that these are the three big issues of 2016?

The HR Law team wish you the very best for the festive season and a prosperous 2017.