This document discusses employment contracts and policies. It provides guidance on drafting employment contracts, including important provisions around status, wages, leave, termination and duties. It also discusses the relationship between policies and contracts, noting policies can become incorporated even if not intended. Effective policies should be clear, reasonable, communicated and applied consistently.
This is a presentation from last year someone asked me about the other day - I have published it because it helps raise awareness of employment law issues for SME\'s.
Advisers will be required to act in the best interest of their retail clients and place their clients’ interests ahead of their own and those of the licensee and employer when developing and providing personal advice.
The intention of FoFA is to remove conflicted payments that could reasonably be expected toinfluence the advice you provide to your client or the choice of product you recommend.
This presentation outlines what you need to know about Conflicted Remuneration.
Do I Have to Pay My Employees for That? Common and Not-So Common Workplace Sc...ADP, LLC
http://bit.ly/1Ik8gBC
Key Takeaways:
-Ensure workers are properly classified
-Pay non-exempt employees for all hours worked
-Pay exempt employees a fixed salary each week
-Maintain records of all hours worked and pay calculations
-Ensure you have an accurate and reliable timekeeping process
This is a presentation from last year someone asked me about the other day - I have published it because it helps raise awareness of employment law issues for SME\'s.
Advisers will be required to act in the best interest of their retail clients and place their clients’ interests ahead of their own and those of the licensee and employer when developing and providing personal advice.
The intention of FoFA is to remove conflicted payments that could reasonably be expected toinfluence the advice you provide to your client or the choice of product you recommend.
This presentation outlines what you need to know about Conflicted Remuneration.
Do I Have to Pay My Employees for That? Common and Not-So Common Workplace Sc...ADP, LLC
http://bit.ly/1Ik8gBC
Key Takeaways:
-Ensure workers are properly classified
-Pay non-exempt employees for all hours worked
-Pay exempt employees a fixed salary each week
-Maintain records of all hours worked and pay calculations
-Ensure you have an accurate and reliable timekeeping process
Basic Contract Law for PMs webinar Part 3:What to do when things go wrong or the unexpected happens
Tuesday 24 April 2018
APM Contracts and Procurement Specific Interest Group (SIG)
presented by Sarah Schütte, Schutte Consulting Limited
hosted by Dr Jon Broome, Contracts and Procurement SIG Deputy Chair
Compliance issues are at the front of every manager's and fiduciary’s mind these days. It used to be that all the worry came from a creative plaintiffs’ bar calling a business's conduct into question, but those days are long gone. Public and private companies are investigated by not only the United States federal government, but also local, state, and foreign governments. Self-regulating entities also add a layer of scrutiny. Under the insulation of the attorney-client privilege, an effective internal investigation can help marshal the facts to inform corporate decisions about past or existing violations and prevent potential future violations. An internal investigation can protect management from the violation and records the company's response to an incident or violation. However, most importantly, it serves to send a clear message that the company is serious about compliance and that it sets transparency as a priority. This webinar surveys recent compliance trends and discusses best practices regarding the attorney-client privilege, joint defense agreements, the use of experts, witness interviews, the consequences of self-disclosure and how to control the impact on the company.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/internal-investigations-101-2021/
IAPD/IPRA Conference Soaring to New Heights presentation for Human Resource professionals. Topics include: HR Best Practices; Class Action and Retaliation; Recent Court Cases; and HR Stories from the front lines.
From the ACA, upcoming changes to the FLSA, OSHA penalties, and other ongoing compliance issues, HR and compliance managers have a lot on their plate in 2016. Join us as we cover tips, best practices, and how to use technology to better manage these issues and more.
Kris Tanner & Dan Ditto provide detailed information about recent HR updates and laws to help keep your business compliant in 2021.
As a co-employer, we're excited to help our clients continue to grow and achieve their business goals in 2021.
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...Financial Poise
Compliance with federal (as well as state) wage and hour laws returned to the forefront towards the end of the Obama administration when it appeared that the salary threshold that applied to exempt employees would be increased significantly. While the proposed change will not happen, the Trump administration has signaled that the threshold will nonetheless likely increase. Regardless of where the new threshold lands, employers must nonetheless be mindful of the risks posed by misclassifying individuals as exempt as well as by a host of practices that can imperil otherwise proper classification decisions. And while the federal government is no longer scrutinizing the use of independent contractors as closely today, employers must still be careful when relying on contractors. This webinar delves into the mistakes commonly made by employers and endeavors to provide attendees with the tools needed to help find and fix potential wage and hour pitfalls.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/employment-wage-hour-compliance-2020/
11.24.20 how to Raise Seed Funding for Your Startup: Convertible Notes and ...ideatoipo
Seed financings enable a startup to put together its initial team, build a working prototype, and begin to test the market. Often these investments are made via convertible debt or SAFEs. Veteran Silicon Valley startup and corporate attorney Jason Putnam Gordon will cover the following topics:
1. Required corporate structure
2. Legal considerations when pitching investors for seed financing
3. Differences between using convertible debt and SAFEs
4. Key terms and considerations when raising seed funding
5. Common mistakes and pitfalls that companies make when raising seed funding via convertible debt and SAFEs
6. How to close your seed financing
7. Important post-closing tasks
8. And much, much more
Come with your questions and get ready to be excited about seed financings!
.
About the Speaker
Jason Putnam Gordon is a results-oriented corporate attorney practicing in the Venture Capital and Emerging Growth Companies group in Polsinelli’s San Francisco office. Jason has a passion for working with experienced entrepreneurs and executives to make their vision a reality.
In his practice, he regularly represents companies throughout their life cycle in matters related to venture capital financing, strategic corporate relationships, corporate formation, complex mergers and acquisitions, sales, and divestitures. With industry focuses on consumer goods and technology, because of his broad skill set and deep network, Jason regularly works in wide array of verticals including artificial intelligence, virtual reality, augmented reality, video games, software, hardware, life sciences, the internet of things and agricultural technology.
Jason works with companies based locally, elsewhere in the U.S. and internationally. Jason brings a unique skill set to the negotiating table and to litigation-minimization strategies in the board room. He started his career as a federal law clerk in the United States District Court for the Eastern District of Pennsylvania and then continued as a litigator handling corporate, securities, intellectual property, and commercial litigation before establishing a transactional practice.
Outside of the office, Jason is dedicated to his family and has a passion for skydiving and indoor body flight.
If you have any questions regarding the content of this presentation, you can reach Jason at:
JGordon@polsinelli.com
Wage & Hour Compliance (Series: Protecting Your Employee Assets: The Life Cyc...Financial Poise
Compliance with federal (as well as state) wage and hour laws returned to the forefront towards the end of the Obama administration when it appeared that the salary threshold that applied to exempt employees would be increased significantly. While the proposed change will not happen, the Trump administration has signaled that the threshold will nonetheless likely increase. Regardless of where the new threshold lands, employers must nonetheless be mindful of the risks posed by misclassifying individuals as exempt as well as by a host of practices that can imperil otherwise proper classification decisions. And while the federal government is no longer scrutinizing the use of independent contractors as closely today, employers must still be careful when relying on contractors. This webinar delves into the mistakes commonly made by employers and endeavors to provide attendees with the tools needed to help find and fix potential wage and hour pitfalls.
To view the accompanying webinar, go to:
Employment & Labour Law in Canada – An Introduction from “Eh” to “Zed”This account is closed
This presentation explores an overview of Canadian Employment & Labour Law and discusses the differences & employee systems between Canada and the United States.
Basic Contract Law for PMs webinar Part 3:What to do when things go wrong or the unexpected happens
Tuesday 24 April 2018
APM Contracts and Procurement Specific Interest Group (SIG)
presented by Sarah Schütte, Schutte Consulting Limited
hosted by Dr Jon Broome, Contracts and Procurement SIG Deputy Chair
Compliance issues are at the front of every manager's and fiduciary’s mind these days. It used to be that all the worry came from a creative plaintiffs’ bar calling a business's conduct into question, but those days are long gone. Public and private companies are investigated by not only the United States federal government, but also local, state, and foreign governments. Self-regulating entities also add a layer of scrutiny. Under the insulation of the attorney-client privilege, an effective internal investigation can help marshal the facts to inform corporate decisions about past or existing violations and prevent potential future violations. An internal investigation can protect management from the violation and records the company's response to an incident or violation. However, most importantly, it serves to send a clear message that the company is serious about compliance and that it sets transparency as a priority. This webinar surveys recent compliance trends and discusses best practices regarding the attorney-client privilege, joint defense agreements, the use of experts, witness interviews, the consequences of self-disclosure and how to control the impact on the company.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/internal-investigations-101-2021/
IAPD/IPRA Conference Soaring to New Heights presentation for Human Resource professionals. Topics include: HR Best Practices; Class Action and Retaliation; Recent Court Cases; and HR Stories from the front lines.
From the ACA, upcoming changes to the FLSA, OSHA penalties, and other ongoing compliance issues, HR and compliance managers have a lot on their plate in 2016. Join us as we cover tips, best practices, and how to use technology to better manage these issues and more.
Kris Tanner & Dan Ditto provide detailed information about recent HR updates and laws to help keep your business compliant in 2021.
As a co-employer, we're excited to help our clients continue to grow and achieve their business goals in 2021.
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...Financial Poise
Compliance with federal (as well as state) wage and hour laws returned to the forefront towards the end of the Obama administration when it appeared that the salary threshold that applied to exempt employees would be increased significantly. While the proposed change will not happen, the Trump administration has signaled that the threshold will nonetheless likely increase. Regardless of where the new threshold lands, employers must nonetheless be mindful of the risks posed by misclassifying individuals as exempt as well as by a host of practices that can imperil otherwise proper classification decisions. And while the federal government is no longer scrutinizing the use of independent contractors as closely today, employers must still be careful when relying on contractors. This webinar delves into the mistakes commonly made by employers and endeavors to provide attendees with the tools needed to help find and fix potential wage and hour pitfalls.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/employment-wage-hour-compliance-2020/
11.24.20 how to Raise Seed Funding for Your Startup: Convertible Notes and ...ideatoipo
Seed financings enable a startup to put together its initial team, build a working prototype, and begin to test the market. Often these investments are made via convertible debt or SAFEs. Veteran Silicon Valley startup and corporate attorney Jason Putnam Gordon will cover the following topics:
1. Required corporate structure
2. Legal considerations when pitching investors for seed financing
3. Differences between using convertible debt and SAFEs
4. Key terms and considerations when raising seed funding
5. Common mistakes and pitfalls that companies make when raising seed funding via convertible debt and SAFEs
6. How to close your seed financing
7. Important post-closing tasks
8. And much, much more
Come with your questions and get ready to be excited about seed financings!
.
About the Speaker
Jason Putnam Gordon is a results-oriented corporate attorney practicing in the Venture Capital and Emerging Growth Companies group in Polsinelli’s San Francisco office. Jason has a passion for working with experienced entrepreneurs and executives to make their vision a reality.
In his practice, he regularly represents companies throughout their life cycle in matters related to venture capital financing, strategic corporate relationships, corporate formation, complex mergers and acquisitions, sales, and divestitures. With industry focuses on consumer goods and technology, because of his broad skill set and deep network, Jason regularly works in wide array of verticals including artificial intelligence, virtual reality, augmented reality, video games, software, hardware, life sciences, the internet of things and agricultural technology.
Jason works with companies based locally, elsewhere in the U.S. and internationally. Jason brings a unique skill set to the negotiating table and to litigation-minimization strategies in the board room. He started his career as a federal law clerk in the United States District Court for the Eastern District of Pennsylvania and then continued as a litigator handling corporate, securities, intellectual property, and commercial litigation before establishing a transactional practice.
Outside of the office, Jason is dedicated to his family and has a passion for skydiving and indoor body flight.
If you have any questions regarding the content of this presentation, you can reach Jason at:
JGordon@polsinelli.com
Wage & Hour Compliance (Series: Protecting Your Employee Assets: The Life Cyc...Financial Poise
Compliance with federal (as well as state) wage and hour laws returned to the forefront towards the end of the Obama administration when it appeared that the salary threshold that applied to exempt employees would be increased significantly. While the proposed change will not happen, the Trump administration has signaled that the threshold will nonetheless likely increase. Regardless of where the new threshold lands, employers must nonetheless be mindful of the risks posed by misclassifying individuals as exempt as well as by a host of practices that can imperil otherwise proper classification decisions. And while the federal government is no longer scrutinizing the use of independent contractors as closely today, employers must still be careful when relying on contractors. This webinar delves into the mistakes commonly made by employers and endeavors to provide attendees with the tools needed to help find and fix potential wage and hour pitfalls.
To view the accompanying webinar, go to:
Employment & Labour Law in Canada – An Introduction from “Eh” to “Zed”This account is closed
This presentation explores an overview of Canadian Employment & Labour Law and discusses the differences & employee systems between Canada and the United States.
In this presentation you find about the employment law. At the Vaughn Law Firm, we have sixteen combined years of experience in a unique and demanding field, and we may be able to help you. The Vaughn Law Firm is a result-oriented firm and has a reputation for compassion and experience. To discuss your needs with one of our compassionate Georgia federal employment lawyers, please contact The Vaughn Law Firm, LLC for confidential consultation by calling 1-877-615-9495.
Compliance with federal (as well as state) wage and hour laws returned to the forefront towards the end of the Obama administration when it appeared that the salary threshold that applied to exempt employees would be increased significantly. While the proposed change will not happen, the Trump administration has signaled that the threshold will nonetheless likely increase. Regardless of where the new threshold lands, employers must nonetheless be mindful of the risks posed by misclassifying individuals as exempt as well as by a host of practices that can imperil otherwise proper classification decisions. And while the federal government is no longer scrutinizing the use of independent contractors as closely today, employers must still be careful when relying on contractors. This webinar delves into the mistakes commonly made by employers and endeavors to provide attendees with the tools needed to help find and fix potential wage and hour pitfalls.
Part of the webinar series: Protecting Your Employee Assets: The Life Cycle Of The Employment Relationship 2022
See more at https://www.financialpoise.com/webinars/
Outsourcing and Procurement: The Hot Points and PitfallsJon Hansen
eWorld Purchasing & Supply Conference
Day 1 - September 28th, 2010
10:20 to 10:50 AM Outsourcing and Procurement: The Hot Points and Pitfalls
Overview:
On paper, outsourcing holds significant potential for delivering much-needed efficiency gains and cost savings. But it can also present a legal minefield for procurement departments and getting the contract right from the outset is one of the most significant factors for realising these benefits. This information-packed briefing explains the key considerations for a successful outsourcing contract, including: defining project scope, employment issues & TUPE, intellectual property rights, agreeing service levels, benchmarking, reporting & audit rights, liability, data protection, confidentiality & Freedom of Information, dispute resolution, duration, termination and exit management.
Speaker:
Debbie Venn, Associate at asb law LLP
Overview of UAE Labour Law and Employee Relations: A Practitioner’s Perspecti...The HR Observer
For all those who wish to learn more about UAE Labour Law, how to handle employee issues such as sickness, disciplinary, grievance, bullying and get avoid the pitfalls of legal fines. The seminar gives a HR practitioner’s perspective on:
• Employment Law essentials (license, visa, fines)
• Contract of employment – should companies use limited or un-limited?
• Termination, gratuity and repatriation
Disclaimer: views expressed in the seminar don’t constitute legal advice
This presentation was used at HR Summit and Expo 2013 www.hrsummitexpo.com
The following checklist is intended as a good practice guide for making redundancies. It does not provide precise guidelines as circumstances may vary from one workplace to another. If you are unsure of the correct procedural requirements, you should obtain industrial relations or legal advice.
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
4. CG In-House Training
Performance Management, Feedback and
Managing Terminations
Behaving Badly in the Workplace
Competition Law: What is acceptable,
and what to do if the ACCC calls
Consumer Law: How not to be misleading
or deceptive
A Complete Guide to Credit Management
Directors’ Duties: How to comply and
manage the risks
Protecting Intellectual Property and
Confidential Information
A series of seminars for managers and employees:
5.
6. Upcoming Events
Credit Management Workshop
A Complete Guide to Credit Management
Presented by Rebecca Hegarty
Tuesday, 25 July 2017
Coleman Greig Boardroom, Parramatta
10. Recruitment: don’ts
• avoid over-promising
• avoid promising or sort-of-
promising before you can make
a formal offer: no bets are on
till you make the formal offer
• be sure you don’t entice
someone away from a job and
then change your mind
11. Recruitment: don’ts
• avoid unnecessary questions:
How old are you?
Are you married?
Do you have kids?
Do you intend to have kids?
Where do you come from?
• these can infringe specific anti-discrimination laws or at least provide a
basis for someone to claim discrimination if they don’t get the job.
12. Recruitment: do’s
Instead, try:
• It is essential you can work these
hours. Would you have any problem
with that?
• This job involves a lot of travel. Any
problem with that?
• This job requires a lot of lifting. Any
problem with that?
• To comply with immigration rules I
need to know if you are an Australian
citizen or permanent resident, and if
not, whether you have a visa which
allows you to work for us, so I’ll need
to see your passport or other
documents to show me your
immigration status.
14. LEGISLATION QUASI LEGISLATION COMMON LAW
FAIR WORK ACT MODERN AWARDS
MINIMUM STANDARDS
(General)
NATIONAL
EMPLOYMENT STANDARDS
STANDARDS
(Specific)
EMPLOYMENT
CONTRACT
BETTER OFF
OVERALL TEST
ENTERPRISE
AGREEMENT
or INDIVIDUAL
FLEXIBILITY
AGREEMENT*
*Conditions apply
WRITTEN UNWRITTEN
CAN’T
MODIFY
AWARD
CONDITIONS
CAN MODIFY
AWARD
PROVISIONS
Contracts, enterprise agreements, awards, legislation
15. Enterprise agreement, Individual Flexibility Agreement or contract?
• What are the issues you are trying to deal with?
• What would an enterprise agreement achieve as a benefit, relative
to the costs of negotiation, process and compliance?
• Would an IFA offer any advantages over a well-drafted contract?
• Would you pass the BOOT easily?
16. Employee or independent contractor?
Employee
• employed on an ongoing basis
• receives employee
entitlements
• works exclusively
• paid by periodic wage or salary
• work, hours and control by
employer
• employer responsible for tax
• unable to delegate
Contractor
• engaged on a task basis
• no entitlements
• responsible for tax
• work for anyone
• paid by task
• sets own standard and hours
• can delegate / subcontract
• may have separate place of
work/office
17. Employee status
• Always agree in advance and specify the status of employees
Permanent Employees:
• Full time employee: Weekly employee working a minimum of 38
hours per week on a continuous basis, entitled to annual leave
and personal leave
• Part-time employee: Weekly employee working less than 38
hours per week on a continuous basis, who has reasonably
predictable hours of work; and receives pro rata pay and
conditions of a full-time employee who does the same kind of
work:
should agree standard hours in writing
18. Employee status
Casual Employees:
• are engaged to perform work on an intermittent or irregular basis or to
work uncertain hours, without entitlement to annual or personal leave
• receive loadings - generally 25% - 30%
• caution where employee is working on a regular and systematic basis
• but an award employee “engaged and paid as such”?
• some provisions in law deal with casuals of long standing: status
recognised for some purposes, may be treated as permanent for others
• casual conversion provisions
19. Ongoing or fixed term
• contract period can be ongoing, with a notice period and termination
provisions: usual for employees.
• a “true” fixed term contract operates for a pre-determined period
(eg. 12 months), and the contract ends at the completion of period:
early termination = pay out the rest of the contract
• some “fixed term” contracts have notice provisions and are not true
fixed term contracts: terminable or notice
20. What type of relationship is this?
• employees go from wages to profit share arrangements and company
thereafter views them as partners
• nothing in writing
• company stops recording leave accrued and taken and
[employees/partners] cease applying for leave and make own
arrangements
• paid $X per week, with monthly profit distributions, or deductions in case
of a loss
• company pays tax and super
21. What type of relationship is this?
• bus drivers classed as casuals, paid
loading accordingly
• some have worked for a long time
• rosters for shifts morning and
afternoon in peak times only,
rosters change but not frequently
23. Employment contracts
• no legal requirement to have a written agreement –
but it is good practice and reduces risk of uncertainty
• In order of precedence, the employment relationship is governed by:
-legislation
-any applicable awards or enterprise agreements
-a contract of employment.
24. Employment contracts
• The contract may include:
-express written or verbal terms
-implied terms
-terms incorporated from policies and collateral agreements
-common practice or industry convention
• get the signed contract before they start
25. Statutory framework
State Federal
Minimum wages
Long service leave
Annual/personal leave
Parental leave
Redundancy
Superannuation
WHS
Workers compensation
Discrimination
26. Important provisions
• status: full-time, part-time, casual etc
• relevant award and classification
• job description
• capacity to work for you: no disabilities or
injuries, issues with immigration status,
or restraints from prior employment
• wages or salary & benefits
• probation
• if applicable, intellectual property,
restraint and non-solicitation clauses
(all require care)
• termination and notice
• duties, standards, review
27. Salary & Benefits
• base salary (reduced to hourly rate where appropriate), and whether
inclusive of super
• car, phone, laptop: what is a tool of trade and what is remuneration?
• relationship to any applicable award and overtime, penalties,
allowances or other loadings (annualised salary or offset clause)?
• bonus provisions – discretionary or formula? - in policies or other
document if subject to change?
• voluntary super contributions and salary sacrifice arrangements – for
the benefit of employee and recorded in writing
28. Probation
• distinction between probation and
“qualifying period” for unfair dismissal
• probation can only be as long as
reasonable
• standard 3-6 months, perhaps longer
for senior employees
• don’t bind yourself to giving reasons
or review during probation
29. Leave
• setting out the rules, at least broadly,
avoids constant questions
• cover some of the detail important to you
• is a medical certificate necessary for 1 day?
• who do you call if you are away sick, and by
when?
• cashing out of annual leave for non-award
employees
• how much notice do you need before leave
is taken?
• do you have an annual closedown or rules
about taking of accrued leave?
30. Notice & Termination
• fixed term – true fixed term contract can only be terminated as a
result of repudiation (serious misconduct) or frustration
• right to pay in lieu (usually employer only)
• “garden leave”
• suspension
• notice (minimum scale of 1 – 5 weeks – longer period if agreed)
• what benefits form part of notice?
• any procedures for investigation or performance management should
be flexible and not too prescriptive
31. Duties/Position Description
• part of contract or attachment?
• important to set base requirements
for performance management
• include provisions providing for
variation of duties, change of location,
change of reporting lines to avoid
these things resulting in “constructive
dismissal”
32. Executive Content
Additional provisions that should be considered for valuable and senior
level employees include:
• non-competition and non-solicitation: what interests do you need to
protect, what is the minimum period you can live with?
• exclusivity and conflict: working in other businesses or holding shares
• incentive/retention clauses
• level of authority
• intellectual property: who owns ideas developed at, or away from, work?
• confidentiality: what is confidential?
• longer notice period – interaction with statutory redundancy entitlements?
• listed entity: capping of termination benefits under the Corps Act
33. Restraint clauses
• legal starting point: assumed to be unenforceable
• Enforceability and reasonableness: necessary to protect a legitimate business
interest and not against public policy
• very strict rules on interpretation: correct entity? severable terms?
• scope: duration and geographic operation? - restraint term must ‘only go as
far as is reasonably necessary’
• restraints on poaching clients and employees easier to enforce than
prohibitions on competition – bare non-compete is invalid
• will it stop the employee earning an income?
• reasonableness test applied against circumstances that existed at the time
the contract was formed, not when it was terminated
• must be clear understanding that salary covers agreement to be bound
34. Changes to the contract
• variations occur by incremental changes over
time and are often not documented
• as a result, the employment contract may
become obsolete and cease to operate:
particularly important for notice periods and
restraint clauses
• variations should be in writing: confirm
changes and reaffirm the rest of the existing
contract
• does the contract contemplate change?
Promotion, change of employing entity,
or other significant change in job requires
new agreement
37. Policies and contracts
• policies are written rules, guidelines and aspirational goals for the
workplace – common policies include:
– redundancy
– performance management
– work health safety
– social media/IT
– bonus schemes
– workplace behavior
• may be referred to generally in the contract, but large amounts of
information are better placed in policies
• policies may evolve and change from time to time without changes to
the contract
38. Nikolich v Goldman Sachs JB Were Services Pty Ltd
• contract of employment expects employee to comply with “office
memoranda and instructions”
• feel good employee manual Working with Us included provisions on
safety, harassment and grievance procedures
• collusion amongst managers meant valuable clients removed from
team
• grievance raised by Nikolich but largely ignored
• employee left work on sick leave due to stress and adjustment
disorder
• employee terminated because he couldn’t return to work and was out
of sick leave
39. • policy documents were held to be part of the employment contract:
responsibilities were mutual, and employer and employee required to
comply
• GSJBW breached own policies on:
- healthy working environment
- grievance procedure
• conduct of GSJBW caused psychiatric damage, employee could not work
• Nikolic awarded 2 years lost income plus 6 months future earnings
Nikolich v Goldman Sachs JB Were Services Pty Ltd
40. James & McKeith v Royal Bank of Scotland Group plc & Ors
• in a merger, RBS published global statement that local redundancy policies
would be honoured for 2 years after date of merger
• James & McKeith had contracts which expressly stated that company
policies did not form part of their contracts of employment
• on termination, RBS initially agreed to pay severance and bonuses to
James & McKeith in accordance with local redundancy policy, in return for
their agreement to sign a deed of release
• the policy included a reference to a ‘deed of release’ but did not specify
the releases that could be sought by RBS
41. • James & McKeith refused to sign deeds and sued RBS claiming severance and
bonuses as a breach of contract
• RBS argued that the employment agreements expressly prevented the
redundancy policy from having contractual force, and alternatively, that
James & McKeith
• the Court held:
– RBS made representations to James & McKeith that the policy would be
honoured
– The policy was written “in the language of contract” and was therefore
incorporated into the contracts
– in the case of the severance component, the policy did not permit RBS to
make payment contingent upon signing a deed of release as the
entitlement had already accrued
– the bonus entitlement was discretionary and therefore could be withheld
James & McKeith v Royal Bank of Scotland Group plc & Ors
42. Contracts and policies: what to do?
• employer can’t have it both ways
• as you probably want the policies to be
binding for your good, you have to accept
the risk they’ll be binding the other way
too
• avoid broad aspirational statements or
commitments you can’t or may not honour
• avoid expressing general
goals/intentions/options as promises or
statements capable of being contractually
binding: build in discretion
• include a term in contract saying policies
are NOT part of the contract
• put in place procedures to ensure
prescriptive policies are followed
44. What should I have policies about?
• work instructions, systems
• statutory requirements: OH&S,
Privacy, Workplace Surveillance
• leave
• EEO and anti-discrimination
• email and internet use
• social media
• drugs and alcohol
• whatever else your circumstances and
experience suggest, such as dress,
training, insurance, smoking, ethics
45. What should a policy contain?
• as much detail as necessary
• but not a mind-numbing amount
• clear guidelines
• who to ask
• the right to vary application of
policy according to circumstances
46. Policies must be:
• communicated and accessible
• clear and unambiguous
• applied
• applied consistently
• reasonable
• applied reasonably, not rigidly,
if circumstances warrant
• fit for purpose
47. Policies not fit for purpose
Richardson v Oracle
• Oracle’s anti-discrimination and harassment policy was the
multinational’s US policy
• no reference to Australian legislation or obligations
• Oracle therefore could not say it had done everything reasonably
possible to avoid harassment within its business
• and therefore could not prove the defence which could have avoided
vicarious liability for employee’s actions
48. Communicate policies to
employees
Williams v Centrelink
• policy: porn is unacceptable
• policy on intranet and screensaver
• W was harassment contact officer
• W sent 23 porn emails, in and out
of office
• 24 employees investigated: 2 sacked
(one of them W), 2 resigned, 20
disciplined
49. Communicate policies to
employees
Williams v Centrelink
• “Everyone does it. No-one would
be offended”
• “My manager said I could”
• “I didn’t see the policy or
screensaver link”
• “Others were treated differently”
• Did his unjust dismissal
application succeed?
50. Communication by:
• training and meetings
• in writing
• by email
• via intranet
• pop-up computer messages
• signs or notices
• reinforced periodically
51. If breach leads to termination, you
must look at the circumstances
• employee sacked for not following
procedure requiring safety goggles to be
worn when cleaning tank, and for
stroppy response when challenged
• policy was clear and justified
• but employee reinstated with serious
warning
• while the policy was clear, it was still
necessary to consider the situation
overall: length of service, clean record,
gravity/triviality of infringement, drastic
consequences to this employee
52. The policy must be reasonable
Internet
• zero tolerance policy on personal use of internet while at work
• employee dismissed for accessing inappropriate websites, but said it was
trivial because he did not go beyond first web-page
• dismissal upheld: the infringement may be minor but the policy was
reasonable and clear
Drugs & alcohol
• the pot-smoking ferry captain: dismissal for failure to disclose
• captain alleged “not affected”
• Dismissal upheld: the zero tolerance policy was aimed at avoiding
arguments about impairment
53. Policies (Cont’d)
Workplace Safety
• Robbery at a petrol station thwarted by attendant who “played dumb” and
pretended he couldn’t access the cash register or cigarette cupboard
• Petrol station attendant dismissed for not following Woolworths Armed
Robbery/Hold-Ups Policy
• Worker had previously received warnings for non-compliance with
policies, including disregard for food safety procedures
• FWC accepted that non-compliance with safety policies potentially
exposes workers and the general public to serious harm and is an
unacceptable risk
• Dismissal was upheld - Tapan Mistry v Woolworths Fuel [2017] FWC 3097
54. Double Standards
• Managing Director of a business bought himself a Lamborghini after 20
years service
• Chief Financial Controller sent a company-wide email with the subject line
“Congratulations you have reached 20 years service on the books .... and
your reward is a Lamborghini.”
• Email also attached a joke resume of the MD which included a list of
hobbies and interests that referred to sexual activities
• CFO was summarily terminated for serious misconduct
• During unfair dismissal proceedings, evidence was led that showed the
company, including the MD had a practice of sending sexually explicit
emails
• CFO awarded $77,800 in compensation for unfair dismissal