Illegal interview questions you can’t ask a prospective employee

May 11, 2022 | Employment Law

An employer’s potential liability for workplace discrimination arises before the first interview and exists whether or not a decision is made to hire a person.

A job interview is integral to the recruitment process and provides an opportunity for the employer to ask questions, check credentials and determine a prospective employee’s suitability for a position. It also provides reciprocal opportunities for candidates to find out more about the role and the organisation and to assess their interest in the position.

Naturally, both parties want to find the ‘right fit’ however the employer is largely in control of the interview process and may go about finding the right person in the wrong manner.

By asking a candidate certain illegal questions during the interview process, employers risk breaching Commonwealth and/or State laws aimed to protect individuals against discrimination in the workplace.

What are illegal interview questions?

When interviewing a candidate for a position, the primary focus of the questions asked should be to assess the applicant’s inherent ability to perform the key functions of the role.

Employers should avoid asking questions about certain unlawful factors for which a candidate’s answer could be construed as relevant to the success, or otherwise, of his or her application. These include questions about age, gender, sexual preference, ethnicity, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or social origin. Essentially, these matters are considered irrelevant in determining a person’s capacity to perform the role.

Even the most innocent questions (such as those that might be asked during the course of social conversation) could be considered unlawful during a formal interview. The following are some examples:

• How do you manage work with three children?
• How old are you?
• Does your disability prevent you from carrying out your job?

These questions have something in common – they are questions that might be asked of a particular category of applicants (those with children, over 50 years of age or with a disability) that would not necessarily be asked of other applicants.

Other questions that may result in a discrimination complaint include:

• What is your religion?
• Where were you born?
• Are you working at the moment?
• Have you had a workers’ compensation claim?

These questions are unnecessary when determining an applicant’s ability to carry out the duties required of the role and should be avoided. Deciding that an applicant is unsuited for the position based on an answer to one or more of these questions may result in discrimination action.

Asking the right questions

Potential claims for discrimination can be minimised by re-thinking your approach to how questions are asked and having a detailed job description to refer to during the interview process. This helps keep the interview on track and ensures only the essential requirements of the position are addressed.

Organisations are encouraged to implement a set of standard interview questions that focus on the key skills and requirements of the position. This may include asking applicants to demonstrate how their skills and personal qualities make them an ideal choice for the role. An effective way to achieve this is to ask for examples of how the applicant has achieved certain outcomes or reacted to particular situations in previous roles. For example, you might ask, ‘please explain how you managed an irate customer during your time as service representative with XYZ’.

Following are some examples of discriminatory questions, together with an alternative approach that can be used to obtain the necessary information from a candidate.

Injuries / physical disabilities

It may be necessary to discuss an applicant’s injuries or physical condition to determine objectively whether he or she would be able to safely perform, without personal risk or risk to others, the duties required.

Rather than asking directly about his or her condition, the interviewer should go through each element of the job and, where relevant, discuss what adjustments to the workplace might be required to assist the applicant perform these duties. Appropriate questions may include:

• ‘Are there any reasons why you may not safely be able to lift 5 kg?’
• ‘Are there any specific adjustments we would need to make so you could carry out the duties required?’

This demonstrates that the employer has genuinely considered the applicant who may be an ideal fit, with a few minor modifications to the workplace.

Age

Asking an applicant his or her age is unlawful particularly if the employer is assuming that the person, due to age, lacks the energy, drive or technical ability to carry out the role. Basing questions on the applicant’s skills, experience and inherent ability to perform these tasks, rather than querying their age will help minimise a discrimination complaint. An appropriate question would be:

• ‘Tell me about your computer experience…what types of programs have you used?’

Family commitments

It is unlawful to discriminate against a candidate based on his or her family circumstances. Rather than asking applicants if they have children or family commitments, simply ask whether they are able to commit to the hours/days required of the position. For example:

• ‘The job will occasionally require you to work evenings and weekends – would this conflict with other commitments?’

Religion or Race 

It is unlawful to rule out an applicant whom you assume will be unable to work weekends due to religion, race or culture. If the job requires weekend work, simply point out the required days and ask the applicant whether he or she would have any issues working these days.

Currently working

Asking an applicant if he or she is currently working could be perceived as discrimination on the grounds of employment, unemployment or receiving a pension. Instead, ask when the applicant would be available to start work.

Conclusion

Avoiding workplace discrimination starts before the recruitment process and continues throughout the employment relationship (including opportunities for career progression), during workplace investigations and termination processes.

Framing questions appropriately to minimise potential action for unfair discrimination and to give candidates an opportunity to demonstrate whether they can perform the job requires sound procedures and ensuring those involved in the recruitment process are aware of their obligations.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or via our contact form here.

Avoiding Redundancy Traps

May 7, 2022 | Employment Law

Redundancy commonly occurs when a business is sold or restructured, and a role that has been carried out by a particular employee (or numerous employees) is no longer necessary. When this occurs, there are certain processes by which an employer must abide to legally declare someone redundant.

Notice and Severance distinguished

Notice and severance payments should not be confused. The period of notice provides the employee with a chance to seek other employment while a severance payment is intended as compensation for the loss of future entitlements to long service leave and accrued sick leave.

Redundancy

Let’s examine what redundancy means. The best way to define redundancy is that the employer no longer wishes the duties the employee has been performing to be undertaken by anyone. Termination of the employee on this ground has therefore nothing to do with poor performance or misconduct. Essentially the work or role is no longer required to be performed by any employee. Redundancy can also happen when an employer becomes insolvent or bankrupt, or following a re-structure, in order to increase the competitiveness or profitability of a business.

The employer must often meet requirements under a relevant award or enterprise agreement before making an employee redundant. This includes discussions with the employee about the prospect of redundancy in view of operational changes or restructuring.

Employers need to be aware that a redundancy which does not meet the above criteria may expose them to an unfair dismissal claim. It should also be appreciated that a redundancy does not remove the need for notice or payment in lieu of notice.

Some employers fall into the trap of going through a ‘redundancy’ and then immediately afterwards advertising the same position. From an employer’s perspective it is prudent to assume the former employee will check your advertised positions.

It is not uncommon for an employer to seek to portray what may in fact be, a wrongful termination of an employee, as a redundancy. The employer needs to ensure that, on examination of the facts there is no basis for a common law claim.

What is a ‘genuine redundancy’?

If an employee has been made redundant and that redundancy is a ‘genuine redundancy’ as defined by the Act, then the employer will be able to defend a claim for unfair dismissal.

Under the Act, it is a genuine redundancy if:

• The person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
• The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment regarding the redundancy; and
• It is not reasonable for the employer to redeploy the person in the employer’s enterprise or an associated entity of the employer’s enterprise.

It is important that the employer who is making an employee redundant not only complies with the consultation provisions of any applicable award or enterprise agreement, but also makes enquiries to make sure that there is not a suitable alternative position available within the employer’s business or any other “associated entity” of the employer.

When should a redundancy payment be made?

 When an employee is made redundant then usually a redundancy payment will be required by the employer and this is often called severance pay.

However, the employee is not entitled to redundancy pay under the Fair Work Act if the employee:

• Resigns;
• Is terminated other than due to redundancy, e.g. misconduct or performance issues;
• Has been employed for less than 12 months;
• Is employed in a small business with less than 15 employees;
• Was employed for a fixed term and that term has ended; or
• Is a casual employee.

The amount of any redundancy payment is calculated by reference to the employee’s years of service. For example if the employee has worked for a period greater than one year but less than two the redundancy period payable would be 4 weeks. If the term was between 9 to 10 years the period would be 16 weeks.

However, an employer may not be required to pay the redundancy for the full length of service if the employee did not have any redundancy entitlements with the employer in question, prior to 1 January 2010. In those circumstances the period from which redundancy payments are calculated is 1 January 2010 rather than the full length of service.

In conclusion – take care

It is easy to fall into one of these employment law traps and employers should be satisfied as to the circumstances that constitute a redundancy, carefully review payments to be made and comply with the Act’s requirements in relation to a “genuine redundancy”.

Regardless if you are an employer or employee, if you feel you need assistance call us on (02) 9963 9800 or connect with us via our contact form.

The New Industrial Relations Reforms for Casual Workers

May 4, 2022 | Employment Law

Disclaimer: Since the publishing of this article, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has come into force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.

The Federal Government is set to introduce a highly anticipated reform of industrial relations laws following a recent case before the High Court of Australia. The new reforms include arrangements in relation to casual employees that are aimed at circumventing the ‘double dipping’ concern following the case of WorkPac Pty Ltd v Rossato (2021) 392 ALR 39. In this blog, we review the changes to the industrial relations laws and outline the case that lead to this controversial decision.

What’s changing?

On 9 December 2020, the federal Government announced the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020. The reforms include an arrangement for casual workers that could bestow upon them stronger rights for ongoing employment.

One key change is the introduction of a legal definition of ‘casual work’ under the Fair Work Act. It is worth noting that no definition currently exists in the Act and this definition could help clear up much ambiguity regarding the implication of casual working arrangements.

The Act will define a casual employee as a person who: 

• is made an offer of employment by the employer on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work; and
• the person accepts the offer on that basis.

Moreover, the changes also mandate that an employer must make a permanent part-time or full-time job offer to a casual employee with a regular pattern of hours if:

• the employee has been employed by the employer for a period of 12 months from the day the employment started; and
• during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a permanent full-time or part-time employee (as the case may be).

However, the employer is not required to make this offer if (based on facts that are known or reasonably foreseeable at the time) they have reasonable grounds not to make the offer.

WorkPac Pty Ltd v Rossato

The changes introduced by the Federal Government come after much concern for the financial welfare of Australian businesses following a recent decision by the Full Federal Court in the case of WorkPac Pty Ltd v Rossato. To read more about this case, read our article linked here.

The Federal Government has said that the proposed amendments will address the ‘double- dipping problem created by the Rossato decision’, so casual workers will not be entitled to both the 25% casual loading as well as the permanent benefits package (comprising annual leave, personal leave, notice of termination or redundancy pay).

Get legal advice

With many ambiguous changes to employment law set to be introduced in the coming year, it is important to seek legal advice if you are unsure about your employment contract or concerned about your potential liability as an employer. You can contact the highly skilled employment law team at Etheringtons solicitors via our contact form or call 02 9963 9800 for a no-obligation discussion.

Independent Contractor v Employee

May 2, 2022 | Employment Law

Ongoing structural shifts within the workforce have exacerbated the importance of a clear distinction between employees and independent contractors. Flexible working-from-home arrangements and the rise of the gig economy have attracted the global workforce to a non-traditional means of employment. Greater autonomy and a more sustainable work-life balance are factors which are likely to catalyse the growth of independent contractors, a sector which already accounts for 7.8% of Australia’s total employment (as of August 2021).

Although this broadens opportunities for employers, there have been frequent legal disputes in distinguishing between employees and independent contractors. Fortunately, in February 2022, the High Court handed down a decision which aided in clarifying the nature of independent contracting relationships; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek).

Who is an independent contractor?

An independent contractor provides agreed services under a contract for those services. Contractors, or subcontractors, usually negotiate their own fees and working arrangements because they represent their own work, not the work that is executed by the business they are contracting for. Although there are many professions which are capable of being performed by independent contractors, the most common examples include freelance writers, graphic designers and auctioneers.

Who is an employee?

Employees on the other hand, are workers who represent the business they are working for. An employee works in the service of the employer under a contract, which establishes work duties and employee entitlements, which must be in accordance with the National Employment Standards.

How does the court differentiate between contractors and employees?

Previously, courts considered the manner in which parties conducted their relationship after the contract was signed. Courts applied a multifactorial approach in determining whether a worker was an employee or an independent contractor. The terms of the contract were relevant but not decisive.

However, in Jamsek, the High Court found that the key differentiation between contractors and employees is to be found within the terms of the contract (whether written, oral or a combination thereof). In Jamsek, the court had significant regard to the nature of legal rights and obligations held within the contracts. Specifically, the court noted that each partnership (provision of delivery services) paid for running costs and expenses of their trucks, and would invoice ‘ZG Lighting’ (the company) for the delivery services provided. By examining these features within the contract, the High Court concluded that these “partnerships” were operating as a business of their own.

How relevant are contracts in determining the relationship between contractors and employees?

The majority decision in Jamsek concluded that the way in which ‘contracts are played out in practice’ is, in most cases, no longer relevant in determining the nature of the relationship. Rather, post-contract conduct is only relevant when identifying relevant contractual terms (where the contract is not wholly in writing), or challenging the enforceability of the contract under the provisions of the Fair Work Act 2009.

It should not be assumed, however, that post-contract performance is entirely irrelevant to the categorisation of work relationships. In particular, it is crucial that parties avoid the following:

1. Waiving their rights under the contract
2. Varying their contracts by way of conduct; or
3. Making representations which may be used to compromise their interests.

Why is it important to distinguish between independent contractors and employees?

The choice between employees or contractors will affect an employer’s tax, super and other obligations. For instance, an independent contractor is not entitled to paid leave and for the majority, pay their own superannuation. On the other hand, employees are entitled to paid leave, are covered under the National Employment Standards and are entitled to a compulsory superannuation provision by their employer. Hence, an ambiguous distinction is likely to create disputes, resulting in severe penalties for employers.

How Etheringtons Solicitors can help?

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Genuine Redundancy and the Importance of Consultation

Apr 10, 2022 | Employment Law

Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.

The Fair Work Commission has reaffirmed the importance of employers complying with consultation requirements when making employees redundant, even during Covid-19. Failure to consult with an employee about the significant changes to their employment means employers cannot rely on the genuine redundancy exception to unfair dismissal enquiries.

Legislative Requirements of Genuine Redundancies

The requirements to establish a genuine redundancy are set out under s 389 of the Fair Work Act 2009 (NSW):

1. The employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
2. The employer has complied with any consultation obligation in a modern award or enterprise agreement;
3. It is not reasonable in the circumstances for the person to be redeployed within the employer’s enterprise or an associated entity.

Findings of the Fair Work Commission

The consultation requirement of genuine redundancies has been highlighted in two recent cases heard by the Fair Work Commission.

In Browne v MySharedServices [2020] FWC 4445, the employee (Browne) was dismissed over the phone without prior consultation by his employer (MySharedServices). The employer relied on genuine redundancy grounds for dismissal. The Fair Work Commission found that whilst operational changes to the business had occurred as a result of Covid-19, the consultation requirement had not been met. Under the relevant modern award (Clerks Award 2009), MySharedServices were required to consult employees on any change that may have significant effect on their employment, including termination. As the consultation did not occur and there were no issues with the employee’s performance, the Fair Work Commission found the termination was an unfair dismissal.

A similar situation arose in the case Freebairn v TLJ Advisors and Accountants (2020) FWC 3915, where the employer failed to consult the employee (Freebairn) about the termination of her employment as a result of firm restructuring post Covid-19. Freebairn filed for unfair dismissal on grounds that no consultation had taken place and that if consultation had occurred she could have arranged to work reduced hours until the JobKeeper scheme kicked in shortly after. As a result, the Fair Work Commission agreed the dismissal was not a genuine redundancy because of the failure to comply with consultation requirement.

Employers must comply with the consultation requirements

Employers must remain vigilant in upholding consultation requirements when implementing redundancies, even in the wake of mass organisational shifts as a result of the Covid-19 pandemic. Consultations must be genuine discussions about the changes to employment and explain how the employer intends to mitigate such changes. In particular, consideration must also be given to how JobKeeper and other Covid-19 relief schemes impact relationships between employers and employees in relation to organizational restructuring.

We represent both employers and employees, so if you or your organisation needs further advice or assistance in relation to redundancies or dismissals, please call Etheringtons Solicitors on (02) 9963 9800 or via our contact form