3 July Myth busting: Putting common misconceptions to rest July 3, 2018 By Reef Admin General 0 Workplace relations is complex and, unfortunately, misinformation is all too common. The REEF team debunks some of the more common myths and gives you the truth. Myth 1 It's illegal to give a bad reference Many people believe that giving a bad reference is somehow against the law. In fact, there’s no obligation at law to give an employee or ex-employee any sort of reference – good or bad. Where the law may intervene is in circumstances where the employer provides a deliberately dishonest or misleading reference causing harm to the employee (e.g. in an action for defamation). To avoid pitfalls, many employers have a policy of only providing a ‘statement of service’. This statement simply confirms the employee’s length of service and the position held. It doesn’t comment on the employee’s performance, ability or conduct. Myth 2 If an agent has an ABN, they’re an independent contractor. Who is and who isn’t an independent contractor is a constant area of confusion? In the real estate industry, it’s not uncommon for an agency to use an independent contractor to list and sell property on the agency’s behalf. But sometimes an agent labelled as an ‘independent contractor’ is later found to be an employee. Whether someone is an independent contractor or employee is of fundamental importance, because agencies can face significant financial penalties if they wrongly classify someone. Many employers are of the view that if the person provides them with an ABN, this means they’re automatically deemed to be a contractor. But this is not the case. Courts have frequently found an employment relationship to exist where the person has their own ABN. The approach the courts take is to look at the relationship as a whole. Having an ABN is one factor they’ll take into account, but it’s not the end of the story. Myth 3 An employee has been absent from work for more than three months, therefore they can be immediately terminated? Employers are sometimes under the mistaken impression that the temporary absence provisions of the Fair Work Act 2009 permit them to lawfully dismiss an employee who has been absent from work for more than three months. This is not the case. When dismissing an employee, you need to be mindful that you aren’t inadvertently breaching any anti-discrimination, adverse action or unfair dismissal provisions. It will be a clear case of discrimination if you dismiss an employee because they’ve been absent due to illness or injury – unless you’re able to establish that the decision to dismiss was because the employee was unable to perform the inherent requirements of the role. There is no such thing as a ‘risk-free’ dismissal. It’s important that you seek professional advice before taking steps to dismiss an employee, particularly where the employee has been absent from work for a long period due to health reasons. Questions? If you’re looking for guidance regarding any of these myths, give REEF a call on 1300 616 170. One of our Workplace Relations Advisors will answer all your questions. Related Myth busting: Solving common misconceptions Workplace relations is complex and, unfortunately, misinformation is all too common. The REEF team debunks some of the more common myths and gives you the truth. Keeping post-employment restraints intact Enforcing a post-employment restraint can be extremely complex – and expensive! Matthew Robinson provides tips to help members through the process and maximise their chances of success. How can I restrain an ex-employee's conduct? It’s a common misconception that a post-employment restraint in an employee’s contract of employment isn’t worth the paper it’s written on. But the absence of a restraint leaves you with very limited opportunity to restrain an ex-employee's objectionable conduct. Court finds 15km post-employment restraint reasonable One of the most common problems faced by real estate employers is what to do to protect the commercial goodwill of the business from exploitation by ex-employees. REEF's Workplace Relations Advisor, Laura Clark, examines this all to common problem and details a recent Supreme Court case where a real estate employer successfully had a post-employment restraint upheld. The value of post-employment restraints It's a common misconception that a post-employment restraint in an employee's contract of employment isn't worth the paper it's written on. But what if you don't include one? What are the consequences? Common questions about Australia Day public holiday With the Australia Day public holiday coming up later this week, some employers have questions. Here's a brief explanation of some of the more common issues. Comments are closed.