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The Risk of Outdated Employment Policies?

Compliance with Employment standards.

Employees should have policies that are consistent with the Employment legislation in the correct jurisdiction. In New South Wales the Fair Work Act applies.

Inconsistent policies expose an employer to risks of not complying with the legislation and incurring penalties.

Scullin v Coffey Projects (Australia) Pty Ltd: No need for the employee to be a primary caregiver – Employee awarded damages for a breach of his entitlements.

This case highlights what can happen if an employer follows outdated policies.

In this case the employer had an outdated policy.

The facts of the case were as follows:

  • A male employee requested 12 months parental leave to assist his wife with the care of their newborn twins.
  • The employer’s policy prescribed that paternity leave was only available to a child’s primary care giver. The employer followed their policies and disallowed the employee from access to the leave.
  • The employee took 12 months leave consisting of other forms of paid and unpaid leave.
  • On his return from leave the employer was only able to provide part-time employment following a downturn in business. The employee agreed to return to work on a part-time basis.
  • The employee was later made redundant.
  • The employee brought legal proceedings in the Federal Circuit Court of Australia.
  • The employee was successful in his claim that his employer had breached the national employment standards.
  • The Court found that the employer had been negligent in preventing the employee access to unpaid parental leave and thereby preventing the employee from being able to return to his previous position.
  • The Court ordered that the employer pay the difference between the actual pay he received as a part time employee and what he would have earned as a full time employee. The court found annual leave and severance pay should also have been calculated based on his full time salary.
  • The amount payable to the employee was $169,347 gross.
  • A penalty of $8,250 was also ordered against the employer for breaches of the Fair Work Act. This penalty was payable to the employee.

What can an employer do to ensure compliance with the national standards?

It is important for all businesses keep abreast of changes to Employment Law and update their workplace policies and employment contracts regularly and as changes occur to ensure they comply with the relevant Employment standards.

For further information about entitlements or advice on your employment documents contact our Workplace & Employment Law Team at Watkins Tapsell.