Employment Law

A working relationship shapes a person’s daily income, time, career development and stability in life; for a business, managing employees bears directly on operating costs, team stability and commercial risk.

The protection of employment law extends well beyond matters connected with dismissal. From recruitment, signing contracts, paying wages, hours of work, leave and performance management, through to redundancy, termination, unpaid wages, workplace discrimination, harassment and bullying — every stage can involve specific legal obligations.

For employees, common questions might be: whether the contract terms are reasonable, whether wages have been paid correctly, whether there is still any avenue to challenge a dismissal, and whether post-employment restraints will affect the next job. For employers, common questions include: whether contracts and the employee handbook are compliant, how to deal with an underperforming employee, whether the redundancy process is correct, and how to respond after receiving a complaint or a Fair Work application.

NS Legal assists both employees and employers with all kinds of employment law matters, including reviewing employment contracts, unpaid-wage disputes, unfair dismissal, workplace discrimination and harassment, performance management, redundancy, workplace investigations and the resolution of employment disputes.

A contract is the starting point of an employment or service relationship. Whether you are an employee or a contractor, before signing you should understand pay, duties, hours of work, the probation period, bonuses, termination clauses, confidentiality obligations, intellectual property, restraints of trade and non-solicitation clauses.

For employers and businesses, a contract needs to match the actual working arrangements and to meet the minimum legal standards. A template contract that is not updated over time, or that is not adjusted for the role and the business model, can easily give rise to disputes later.

Unpaid-wage disputes can involve base pay, overtime, weekend pay, public holiday pay, allowances, bonuses, commissions, leave pay and superannuation.

An employee who suspects they have been underpaid should, as early as possible, gather payslips, rosters, bank records and records of communications. An employer who discovers a problem with how wages have been calculated or how employees have been classified should review it promptly, to avoid the underpaid amount continuing to grow.

Workplace bullying, discrimination and harassment can occur in day-to-day management, rostering, performance reviews, promotion, the handling of complaints and the dismissal process.

Employees should, as far as possible, record the specific incidents, dates, locations, people involved and any supporting evidence. Once an employer receives a complaint, it should take appropriate steps promptly to prevent the matter escalating further, and ensure the investigation is fair, objective and documented.

Performance management requires clearly identifying the problem, giving the employee an opportunity to respond, and setting reasonable improvement requirements. An employer who simply puts together documents after the fact in order to dismiss the employee later may increase the risk of a dispute.

When an employee receives a warning or a performance improvement plan, they should first confirm the employer’s specific allegations, whether the assessment is accurate, whether they have an opportunity to respond, and what consequences may follow.

Redundancy usually involves a genuine business reason, a duty to consult, the possibility of redeployment, the notice period and redundancy pay. For employees, the focus is on confirming whether the role is genuinely no longer required, whether the process was reasonable, and whether the termination payment is correct. For employers, the focus is on ensuring that both the redundancy decision and the process are well founded.

After being dismissed, an employee should confirm as soon as possible the reason for the dismissal, the last day of work, the termination payment and whether any avenue to challenge it exists. Some applications, such as unfair dismissal, usually have a short time limit — for example, a 21-day limit.

Before terminating employment, an employer should confirm whether there is a valid reason, whether the process is fair, whether the employee has been given an opportunity to respond, and whether there is any risk of adverse action, discrimination or reprisal.

A separation agreement (deed of release) can involve the payment amount, confidentiality, the release of rights, non-disparagement, client relationships, restraints of trade and non-solicitation clauses.

Before signing, an employee should confirm how the restraint clauses will affect arrangements for their next job; an employer needs to ensure the exit arrangements are clear, the payment is correct, and its commercial interests are reasonably protected.

NS Legal provides employment-law legal services to employees, employers and independent contractors.

We can help you to:

• review, draft and negotiate employment contracts;
• review contractor agreements and service agreements;
• assess questions of employee, casual and independent-contractor status;
• deal with disputes over unpaid wages, superannuation, bonuses and commissions;
• help employees respond to warnings, performance management or disciplinary meetings;
• help employers with performance management, redundancy and dismissal processes;
• deal with workplace discrimination, harassment, bullying and complaints;
• assist in conducting or responding to workplace investigations;
• review employee handbooks and workplace policies;
• deal with separation agreements, confidentiality and restraint clauses;
• assist with proceedings before the Fair Work Commission, the Fair Work Ombudsman or other relevant bodies;
• resolve employment disputes through negotiation, mediation or litigation.