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4 employment myth busters

David Bates
2 October 2018

This week our firm will be hosting another of our regular ‘employment law myth busting’ webinars. These webinars tend to be particularly popular because almost every employer has fallen for an ‘urban HR myth’ at some time or another.

Not sure if you’ve ever believed an HR fairytale? You’re certainly not alone! Here are just some of the myths we’ll be busting this week:

Myth 1: Small businesses are excluded from Unfair Dismissal laws

This myth was actually fact…a decade ago! However, since the commencement of the Fair Work Act, all the way back in mid-2009, employees in the national system have become protected from unfair dismissal as soon as they’ve completed the applicable ‘minimum employment period’. This period is 12 months where the business has fewer than 15 employees. It’s 6 months in all other businesses.

Myth 2: If I dismiss someone before they complete their probationary period, they can’t bring a claim against me.

While it’s true an employee who hasn’t completed the applicable minimum employment period isn’t protected from unfair dismissal (see Myth 1 above), any employee can accuse you of:

(a) discrimination

(b) taking adverse ‘action against’ them; or

(c) breaching their employment contract

at any time during their employment (including during their probationary period and, in the case of (a) and (b), even if you don’t employ them!

Myth 3: I can pay my employees whatever we agree as long as it’s above the National Minimum Wage.

The National Minimum Wage is designed as a ‘safety net’. It only applies to employees who are not covered by a Modern Award or an Enterprise Agreement. The simple fact is most employees in Australia are covered by either a Modern Award or an Enterprise Agreement and these contain minimum rates of pay (as well as a dizzying array of other terms and conditions of employment), which much be provided to the relevant employees.

Myth 4: I can cash out all my employee’s accrued annual leave if they request it.

While you might be doing your employee a favour, you certainly won’t be doing yourself (or your business) one, if you allow an employee to cash out all their accrued annual leave. Unless an employee’s employment has come to an end, strict rules must be followed whenever annual leave is cashed out, and a minimum balance must always be retained.

There are so many myths out there that it’s often hard to know where to start. We hope this brief look at just some of them has been helpful and got you thinking: what other HR myths have I believed!?


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