As employment lawyers, we sometimes don’t hear from certain clients until something goes wrong. It may be that the new recruit doesn’t have the skills to fit their job description, an unsuccessful candidate has made a discrimination complaint, or the challenging consequences of a poorly drafted employment contract are coming to light. With each of these issues and others, what is often apparent to us is that a series of common errors have led to the problem. For new managers and other new starters in HR, there is no better way to hone your skills than to learn from the mistakes of others. This list of tips is for you.
Know your industrial instruments and who they cover
Does a modern award or Enterprise Agreement (‘EA’) apply to your organisation? It seems a simple question, but while most junior HR practitioners will be able to answer it, many are not across the details of these instruments. It is important that you understand who is covered by these instruments and at what level of seniority the relevant modern award or EA ceases to apply.
Time spent making file-notes is never wasted
Whether you are advising a line manager on a recruitment strategy or discussing job selection criteria with a prospective candidate, make sure you make a record of it and file it accordingly. Your notes need to be easy to read and understand, in plain English and free of shorthand or any unnecessary embellishments (e.g. “silver fox” or “fat one”). Always check that the file-note includes the date, names of persons present and the name of the author of the file-note.
Follow up meetings in writing
If you have conducted a disciplinary meeting or any other meeting with an employee that is particularly important, in most cases the meeting should be followed up in writing with an email or letter. Don’t assume that your verbal message has been interpreted in the way you intended. It is generally best practice to follow up such meetings with a written summary of what was said and agreed upon.
References are there for checking
It seems like a mistake that is too obvious to make but unfortunately it happens quite regularly: a line manager or HR representative fails to properly check a prospective employee’s references and some months down the track problems emerge that could have been easily avoided. Ensure that references are checked before making any offer of employment. Making a verbal offer and then conducting reference checks is not best practice.
Contract first, then employment
Once an offer of employment has been made, a contract of employment should be provided to the prospective employee well before their first day on the job. It should be a condition of employment that the contract is signed and returned before the employment start date. This gives the prospective employee the opportunity to accept the terms of employment in writing before their employment effectively begins.
Educate your recruiters about discrimination
Where line managers in your organisation are involved in the recruitment process, ensure that they understand the organisation’s statutory obligations. Do your line managers understand that protections under equal opportunity laws extend to job applicants? It is HR’s responsibility to ensure that they do and that issues of unconscious bias are addressed. Consider producing a checklist or a set of guidelines that will assist managers in following an appropriate process when assessing job applicants…and make it less likely that HR will be called in to clean up after the fact.
Notice of termination must be given in writing
There is a clear and strict provision in the Fair Work Act 2009 (Cth) that requires notice of termination to be given in writing. The notice period will not start to run until the written notice is provided to the employee. This means that if an employee has been advised verbally that their employment has been terminated, the line manager or HR must follow it up in writing, ideally on the same day.
Probationary periods are not the final word
A common misconception is that if an employee’s employment is terminated during probation, they cannot bring any legal claims to challenge that dismissal. While it is correct that employees cannot bring an unfair dismissal claim within the first six month of employment (or within the first 12 months, if employed in a small business), there are other legal claims they can bring. Employers must ensure that any reason for dismissal is lawful, not discriminatory and ideally communicated to the employee so that they do not leave under the apprehension that the reason was discriminatory. All employees are protected from dismissal for discrimination and other proscribed reasons during any stage of their employment, as set out in the Fair Work Act 2009 (Cth) and equal opportunity legislation.
Please don’t hesitate to contact us if you would like us to assist with an audit of your systems and processes.