Keeping on the right side of the (Employment) Law – what do Employers need to do? 24 Sep 2018
Employers and employees are legally required to deal with each in “good faith” during their employment relationship. But what does this actually mean for employers? What do they need to do to keep on the right side of the (employment) law?
At a minimum, “good faith” means an employer:
- Will be “responsive and communicative” towards employees;
- Will be “active and constructive” in creating and continuing a productive relationship with the employee; and
- Won’t do anything to mislead or deceive their employee(s).
It also means that, where the employer is considering making a decision that will, or is likely to, have a negative effect on the continuation of an employee’s employment, they will provide affected employees with:
- Information relevant to the decision; and
- An opportunity to comment on the information before the decision is made.
Sometimes, in order to best understand what something is, it helps to look at what it is not. The following are some examples where employers were found not to have acted in good faith:
- Failing to warn an employee that their ongoing employment might be in jeopardy if allegations against the employee were upheld by the employer.
- Failing to advise an employee of the reasons they were being suspended when asked by the employee.
- Failing to disclose information relevant to a restructuring decision prior to the decision being made.
- Failing to provide an employee with all the allegations and evidence against them in a disciplinary hearing.
- Raising performance concerns for the first time at a disciplinary hearing.
- Not telling an employee all the factors the employer relied on when deciding to dismiss the employee.
- Relying on allegations which were not put to an employee during disciplinary proceedings.
- Contacting union employees directly, rather than through their union, during collective bargaining.
- Failing to consult with a union over a proposal to move particular employees onto fixed term contracts which were inconsistent with their collective agreement.
- Misleading an employee in pre-contractual negotiations about the actual terms and conditions of their employment.
- Failing to properly or fairly investigate or respond to an employee’s allegations of bullying.
Consequently, if you want to limit the risk of being on the wrong side of the (employment) law:
- Raise any issues with employees in a fair and timely way.
- Respond to employee’s concerns as quickly as possible.
- Let employees know of the likely consequences if an allegation is established or a course of action is adopted by you as employer (i.e. to continue with a restructure).
- Give employees a real opportunity to respond to allegations/explain their position.
- Give unbiased consideration to explanations.
- If you are considering restructuring/ making employee(s) redundant, give employees sufficient, relevant information to enable them to meaningfully contribute to the discussion.
- Consider employee’s suggestions and proposals with an open mind.
- Consider redeployment possibilities, where feasible.
- Be prepared to change your mind about a particular situation or behavior.
Should you need any assistance with this, or with any other Employment matters, please contact Lois Flanagan or Hannah Carey at Parry Field Lawyers (348-8480), firstname.lastname@example.org or email@example.com.