Five tips for employers to avoid risks from understaffing and delays

Lack of retention and recruitment has become an all too familiar issue across a range of industries. NB Lawyers’ Council clients are having staff issues that are similar to manufacturing companies, health practices and accounting firms.

The COVID-19 Pandemic created a need for a number of new positions, including contact tracing. There was high demand for these employees, lots of work and a determination to make the best efforts to contain the Pandemic. One such employee found his employer, the Department of Health (Victoria), caused major delays in getting back to him on the certainty of his position.

It begs the question: Did the attention dedicated to dealing with COVID-19 lead to priorities being shifted away – in particular, away from proper people management?

The Fair Work Commission (FWC) has handed down judgment in the matter of Bradley Alan Fisk v State of Victoria (Department of Health) [2022] FWC 911 (31 May 2022) a jurisdictional objection in the General Protections jurisdiction.

The judgment provided scrutinising commentary at the Department indicating their difficulties to deal with the employee’s concerns and inability to comply with the orders of the Fair Work Commission required specific comment.

At [54] the commission stated “It is likely that the failure to vary Mr Fisk’s contract for a further fixed term was the result of resourcing and administrative pressures affecting the Department’s ability to function (discussed earlier) as well as a failure to resolve the classification dispute that caused Mr Fisk not to accept the offer of the second fixed-term contract after it was sent to him on 8 December 2020.”

The facts

1. Mr Fisk was employed for a fixed term between 26 August 2020 and 31 December 2020.
2. For the first 11 weeks, he received no payment for his services (“It was a sign of things to come”[7]).
3. Mr Fisk was offered a new position as a team leader however when he asked for his pay to be adjusted he heard nothing back and therefore did not accept the new position.
4. Mr Fisk continuously followed up on the renewal of his contract but received no reply.
5. He became increasingly frustrated and changed his behaviour towards his colleagues.
6. During this period Mr Fisk received complaints about his passive-aggressive behaviour which he later claimed was a result of the frustration of not having certainty in his future employment.
7. As the relationship broke down, Mr Fisk was ultimately terminated from his employment on grounds of performance, effective on 30 June 2021.

The commissioner rejected the arguments of the employer stating that the employee’s contract had expired and as such this was the true reason for his termination. The commissioner stated that the end period of the contract had well and truly expired and he was no longer under a fixed period of employment.

The commissioner laid blame on the extremely under-resourced employer.

The detail was given to the following:

1. Significant under-resourcing of the Department’s administrative functions.
2. Management of internal human resources during this period was “haphazard”.
3. The employee sought clarification on multiple occasions regarding employment but received no response until his termination.
4. It was never established that following 31 December 2020 Mr Fisk would continue his employment on a fixed-term basis.

As a result, the jurisdictional objection failed and the employee may now continue with their General Protections claim.

Five tips for employers – what we can learn

Another basic method is to ensure that offers of employment are not made until checks are undertaken.

• Human Resources should always address all concerns raised by employees, particularly those relating to employment contracts and payroll. This should be done in a timely manner. Unreasonable delays such as 2-3 months should not be entertained whether it is the external investigators taking too long or internal mechanisms of the organisation creating the delay, the Fair Work Commission have made their views clear – unreasonable delay is unacceptable.
• Being significantly under-resourced will leave HR managers and employers exposed to “key risks” and hinder their “ability to function.” This may include;
  1. Missing deadlines, such as Mr Fisk’s lapsing contract.
  2. Contraventions of the Fair Work Act, in this instance, missing adjustments in an employee’s pay.
• Employers should take a proactive approach and not a reactive approach toward their business and employees. Examples might include:
  1. Management training
  2. Workforce planning strategy
  3. Policy and Contract reviews
  4. Wage audits (sample wage audits on a regular basis)
• Human Resource staff should familiarise themselves with the consequences that may arise from being under-resourced. Following this, an action plan to remedy the situation may be needed.
• If your business was shaken by the Pandemic, you could be missing something that could expose your business to such risks as well. A proper review should be conducted by risk management teams or Employment Lawyers. Such gaps will include:
  1. Workplace Health and safety gaps
  2. Workplace bullying and reasonable management action misunderstandings
  3. Not knowing the difference between Unfair Dismissal and General Protections claims
  4. Mismanagement of grievances and complaints
  5. Poor handling of mental illness or injury disclosures

This article was originally published on NB Lawyers for Employers here and was republished with permission.

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.