WORKPLACE RELATIONS - Frequently Asked Questions

A new staff member is nearing the end of her 3 months probationary period. She has not met our expectations and we do not wish to keep her on. Are we required to give her notice?

Yes, except if the dismissal is for serious misconduct (as defined in the FW Regulations). Permanent employees with less than one year’s service are entitled to one week’s notice of termination (or payment in lieu of notice).

The legislated National Minimum Standards of employment (the NES) sets out a scale of the legislated notice periods of termination that employers are required to give employees. The notice period is based on the employee’s length of continuous service, and in some cases, the employee’s age.

Whether an employee is serving a probationary period at the time of the dismissal does not affect the required notice period.

More information about the National Employment Standards is available at this link.

One of our restaurant workers has become difficult and no longer shows any interest in his job. He has been with us for nearly five years and until recently, was a good worker. Reprimands are just ignored. Must we give him three warnings before we can sack him, and must they be written warnings?

Ignoring mitigating circumstances, one verbal warning, a written warning and a final written warning is an indication of what might be considered fair for this level of poor performance.

The legislation does not specify a particular number of warnings, or how warnings must be delivered.

When ruling on an unfair dismissal claim, the Fair Work Commission (FWC) must take into account not only the reason for the dismissal but whether procedural fairness was applied. Procedural fairness includes issuing adequate warnings proportionate to the seriousness of the wrongdoing.

Note that even if the number and nature of warnings are deemed adequate, the dismissal may still be ruled unfair if other aspects of procedural fairness are not followed (e.g. if the person was not given an opportunity to defend or correct poor performances).

More information about Termination of Employment is available at this link.

Our maintenance man has damaged the company two-way radio. We plan to deduct the cost to repair it from his wages. Can we do this?

Yes, but only if the equipment was deliberately or maliciously damaged.

Under the Hospitality Industry (General) Award (clause 38), an employer may not deduct any sum from the wages in respect of breakages or cashiering underlings, except in the case of wilful misconduct.

Generally, aside from permissible deductions in an award or certified agreement, or from legally imposed deductions (e.g. tax or a garnishee), a deduction from wages for any reason is not permitted unless authorised by the employee in writing, and then only if it is principally for the benefit of employees (e.g. as in a salary sacrifice agreement).

A deduction from wages as a form of punishment, or as a performance management tool, is completely unlawful.

A new staff member has been with us for about a month, and phoned in sick this morning. Is she entitled to sick leave in her first 12 months?

Yes, but only to the extent of the amount of leave accrued at the point in time. (A full-time employee accrues approximately 6.3 hours of Personal Leave (including sick leave) per month). Once all accrued leave at a point-in-time has been exhausted, there is no obligation to pay an employee who is absent because of illness.

If you choose, you can grant paid personal leave before any has accrued and take it into account as personal leave becomes available later. However, if the employee’s employment ends before he/she has accrued sufficient leave to cover the advance leave, it is unlikely that you will recover the wages paid in advance.

For more information, please contact the representative in your state:









Does an employee accrue annual leave when on long service leave?

Yes. As a rule of thumb, when absent on any approved paid leave (e.g. long service leave; annual leave; personal leave, further paid leave (annual leave etc) continues to accrue during the absence.
An employee does not accrue paid leave during periods of unpaid parental leave, or on any other type of unpaid leave. (The exception is, absence on approved unpaid community service leave does not disrupt leave accruals)