24 November 2015


Our top 5 tips for avoiding employment litigation

All employers want to avoid the stress, cost and downtime associated with litigation commenced by an employee (or former employee). Here are our top five tips for preventing work-related litigation.

1. Establish and document clear expectations

Establishing clear expectations of your employees is fundamental in ensuring that the requirements of the position are met, the employee is a cultural fit for the organisation and you are able to attract and retain good employees.

A thorough position description which highlights the requirements of the role to potential employees before they apply for a position and a clear contract which reinforces when and how work is to be performed will assist in ensuring that both parties are on the same page.

Up to date policies and procedures should also be used to clearly outline operational and legal requirements of your employees in greater detail. That said, your contracts of employment should be drafted so that company policies do not form part of the contract of employment. Training in policies and procedures is also essential.

2. Give constructive feedback

Giving constructive feedback will assist employees to fulfil the requirements of the role and help them grow and develop within the organisation.

While regular performance appraisals are key, do not wait to give positive feedback or address areas of concern. Waiting to give positive feedback may make an employee feel undervalued and delaying addressing areas of concern could create a greater problem.

3. Create a paper trail

Take detailed notes of meetings (particularly if performance/conduct concerns are raised). Having a paper trail documenting the employment relationship and any hiccups that occur along the way may assist in defending against future employment litigation if a dispute arises down the track.

4. Know when to hold ‘em and when to fold ’em

If an employee’s employment is terminated within 6 months of their employment or 12 months for small business the employee will not be covered by the unfair dismissal protections in the FW Act.

Accordingly, if you have raised significant performance or conduct issues during this time and cannot see any improvement in the employee’s performance/conduct you may wish to consider calling time on the employment relationship before the employee can avail themselves of an unfair dismissal application. Be aware that employees terminated during their probationary period may have other options available, such as a general protections or discrimination claim.

5. Get prompt legal advice

When in doubt, and particularly before making a decision to terminate an employee’s employment, consider getting legal advice. In our experience, early legal advice will almost always save money in the long run.

Posted in Legal Advice & Consulting and tagged .
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