Human Resources (HR) can be complex & our goal is to make HR easier for businesses. We often hear of many uncertainties or myths. In this article we cover some common misconceptions including; warnings prior to termination, employment contracts & negative references.
Employment & HR Myths – Common misconceptions in HR include the belief that multiple warnings are required before terminating an underperforming employee, that unwritten contracts are invalid, and that giving a negative reference is unlawful.
Myth One: Three strikes you’re out!
It’s a myth that employers must give three warnings before dismissing an underperforming employee. The Fair Work Commission considers whether warnings were given, but the Fair Work Act 2009 does not mandate a specific number. In cases of serious misconduct, dismissal can occur without any warning.
Sometimes providing more than three warnings might be appropriate, sometimes less. In the case of serious misconduct, it may be appropriate to dismiss an employee without any warnings.
Alternatively, a business may incorporate the number of warnings required before dismissal into its policies or employment contracts. Lawfully a failure on the part of the employer to follow these specifications could lead to an unfair dismissal claim. Employers must ensure they are familiar with all such documents before proceeding with termination.
Myth Two: If you don’t have anything nice to say don’t say anything at all.
A common misconception surrounding recruitment is the notion that providing a “bad” reference is against the law. In reality an employer has no legal obligation to provide a reference either bad or good for an employee.
While it is not illegal to provide a bad reference the law may intervene if an employer deliberately provides a dishonest or misleading reference that causes some harm to the employee.
To avoid these pitfalls an employer may elect to provide a statement of service instead of a reference that confirms the employee’s length of service and position but makes no further comments.
Myth Three: If its not on paper it doesn’t exist
An employment contract is a legally binding agreement between an employer and an employee. While not legally required to be in writing, written contracts are best practice to avoid confusion or disputes. Verbal agreements can be enforceable, but a lack of documentation often leads to issues over property, bonuses, or entitlements.
Oral contracts are valid but hard to prove, making enforcement challenging. If relying on one, keep detailed records of negotiations and discussions to create a paper trail for potential court proceedings.