Myth busting: top five employment myths

Myth 1: An employee can be fired on the spot if they are clearly in the wrong and their conduct obviously amounts to serious misconduct

Even in cases of serious misconduct that appear to be beyond challenge, employers will have to comply with the usual principles of good faith, conduct a fair and reasonable disciplinary procedure and follow their own disciplinary policy (if they have one) before they dismiss an employee.  Take care with suspending an employee, they should be invited to attend a meeting first and asked for their input, before suspension is confirmed.

Conducting a proper investigation; providing an invitation to a disciplinary meeting; setting out the allegations and concerns in writing before the meeting; providing an opportunity to respond; informing the employee of their right to be accompanied by a support person and outlining the possible consequences will all be key elements of a disciplinary process.  A preliminary decision should also be given and the employee should be offered a chance to respond before a decision is finalised.

Myth 2 : No contract in writing means no contract at all

The law requires employers to provide employees with a written employment agreement containing a number of baseline provisions. This includes hours of work, employee duties, remuneration and various employee protections. Failure to do so will open them to penal liability.

However an offer of employment and a verbal acceptance can give rise to an employment relationship and with that, obligations to meet certain obligations.

Note some provisions, such as 90-day trial periods, must be in writing and contained in the employment agreement to be valid.

Myth 3: An employer can’t discipline an employee for their activities on their personal social media accounts

Employers can take disciplinary action for an employee’s inappropriate use of social media. Inappropriate use of social media, such as divulging confidential information, making disparaging comments about the employer or bullying or harassing other employees on social media can be matters giving rise to misconduct (or serious misconduct).

In addition to any duties contained in the employment agreement and company policies, the employee owes an obligation of good faith, fidelity and confidentiality to an employer, requiring them to act in the best interests of the employer. Accordingly, the employer has a right to trust and confidence in the employment relationship.

We strongly advise having a social media policy so that employees are aware of their obligations in relation to social media usage and obligations to their employer.

Myth 4: Employers must pay annual leave in the normal way to employees who have recently come back from parental leave

Entitlement to annual leave continues to accrue while the employee is on parental leave.  During parental leave or a period of preference following parental leave or in the 12 months following taking parental leave, the amount payable is determined by calculating only the employee’s average weekly earnings for the 12 months immediately preceding the end of the last pay period to the annual leave being taken. This can result in lower annual leave payments after a period of parental leave.

It is therefore common for employees to request that they take their annual leave in advance of going on parental leave. Employers do, however, have the option of choosing to pay annual leave at an enhanced rate (such as ordinary weekly pay), but will need to ensure they act consistently. Having a parental leave policy can help ensure consistency.

Myth 5: An employer must provide a reference if asked for one

You are not required to provide a reference if asked for one. If you are asked to provide one, always check that your employer is happy that you provide this in the company’s name. Many employers no longer provide references (but allow employees to give references in a personal capacity if they wish to do so).

If an employer does provide a reference is must be accurate and truthful. A reference must not make any misleadingly positive or unsubstantiated negative statements or claims. An employer can face liability for any loss that results from their misleading or inaccurate statements.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw,  Fiona McMillan