Plumbing Connection Winter 2022

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3 2 PLUMBING CONNECTION Winter 2022
1 You have to always give a
warning to an employee before
dismissing that employee. This
is a very common misconception and in
fact even some in the legal profession
get it wrong so little wonder that those
in the small trades industry get it
wrong.
In a case of serious misconduct (the
Fair Work regulations give by way of
non-exhaustive examples of serious
misconduct theft, fraud, drunkenness
and assault) where the conduct of
the employee is so serious that the
continuation of the employment
relationship is so untenable it cannot
continue, no warnings prior are required.
Another more common example
of serious misconduct is where the
employee refuses to carry out a lawful
and reasonable instruction, where
to refuse is inconsistent with the
employment continuing. A topical
example may be where the employer
directs say an employee to be
COVID vaccinated where that
employee deals with the public
all the time and refuses to be
vaccinated.
Here though, there
commonly is a warning of
the possibility of the ending
of the employment, and or
some consultation about the
directive.
2 Casual employees of a long
duration (say 12 months or more
employment) have an automatic
right to be converted to permanent
(whether full or part time) employment.
The law allows an employee to request
conversion to permanent staff (but not
for small business, defined as less than
15 employees), but the employer can
refuse on reasonable business grounds.
In a small business scenario, the
THE TOP SIX EMPLOYMENT LAW
MYTHS IN THE TRADES
There are some still commonly stated myths in the employment law area among trades. Paul Cott myth
busts the six most common ones.
LEGAL MATTERS - PAUL COTT
employee can request conversion
however the employer can refuse
and even though not required to give
reasons for the refusal, should do so.
3 In the unfair dismissal context,
if an employee lodges an unfair
dismissal application and it is
found the dismissal to be unfair, the
employee will be awarded all of their
resultant financial losses, and the
to justify a termination of employment,
can reduce the amount of compensation
awarded as the commission says that
the employee in a relatively small way,
contributed to the termination.
4 If an employer wishes to give no
more shifts to a casual employee
(even a long-term casual) then
there is a belief among many employers
that they have to formally end the
employment relationship.
Whilst this is a good practice in a
sense in that it creates certainty for
both employer and employee, and it is
borne out of fairness for the employee
so that they know the status of their
employment and can then find another
job, it is a somewhat risky thing to
do for an employer. This is because
what the employee may do (and it has
happened a lot in my experience) is
lodge an unfair dismissal claim
as they say they have been
unfairly dismissed.
Now the right for a casual
employee to lodge an unfair
dismissal claim is restricted
in the sense that they have
to be a long-term casual
with an expectation of
ongoing employment, but
once the claim is lodged, the
employer has to still deal with
it. It is often best therefore, if this
risk is to be avoided, if to simply just
offer the employee no more shifts.
That is the nature of casual
employment, that of one where both
employer and employee can offer no
more shifts (the employer) and the
employer does not have an obligation to
accept any shifts so offered.
5 Though it may be somewhat
surprising how often this one
comes up, often an employee
alleged misconduct which resulted
in the dismissal will not reduce
compensation awarded.
This is untrue as there is an element
of contributory negligence here as
the employee can be found to have
contributed to the termination, despite
the dismissal being unfair in the sense
of it being harsh.
That is, any misconduct by the
employee, though not classed as serious
enough by the Fair Work Commission