- Under the Fair Work Act 2009 (Cth) (FW Act), employers have a right to request medical evidence, such as a medical certificate, on each occasion that an employee is absent from work due to an illness or injury, including a single day or part-day absence. Employers can also request evidence if an employee is absent due to carer’s leave.
Despite this, employers may have a policy that provides different evidence requirements, and employers should be mindful of any policy requirements when making requests for medical evidence. - The idea that an employee cannot file an unfair dismissal claim simply because employment has ended during the probationary period is somewhat of a myth, because it really depends on the length of the probationary period. In order for an employee to be eligible to make a claim of unfair dismissal, the employee must first have completed the minimum employment period, which is 6 months (or 12 months for small business employers). It is important to understand that the contractual probationary period and the statutory minimum employment period are two distinct concepts. This is a crucial commercial consideration when determining an appropriate probationary period for new employees.
- Generally, under the FW Act, employers can only make deductions from an employee’s pay when the following requirements are satisfied:
a) the employee agrees in writing to the deduction and the deduction is principally for the employee’s benefit;
b) the deduction is authorised by or under law, an industrial instrument or an order of a court.
Additionally, a deduction authorised in writing and principally for the employee’s benefit must specify the amount of the deduction and may be withdrawn by the employee in writing at any time.
Therefore, despite many employment contracts containing a provision stating that the employer can deduct any monies the employee owes to the employer from the employee’s pay, employers should be mindful of the rules regarding deductions, particularly in relation to training benefits, payments for courses, etc, and even more so in light of the wage theft laws that came into effect on 1 January 2025. - If you fail to specify a notice period in an employment contract, you might owe more than you think.
If a contract doesn’t state the required notice of termination, the courts may imply a “reasonable notice period”, which could be months, especially for senior staff. - Contract terms can be ‘outdated’ by custom and practice
If an employee has been working under different conditions than what’s written in the contract (eg higher duties, different hours), those new conditions might become the actual terms of employment. - ‘Resignation’ doesn’t always mean the employee left voluntarily
If an employee resigns due to pressure, bullying or toxic culture, they may still be able to claim constructive dismissal and bring a claim against their employer. - Employment contracts can override Awards, sometimes…
A well-drafted employment contract can provide greater clarity and sometimes offer benefits that offset Award entitlements, but it can never reduce or exclude them.
Contact Us – Walsh Legal Group if you haven’t reviewed your template Employment Contracts recently (or if you did not have them prepared by a Lawyer).