Community pharmacy owners commonly make a number of incorrect assumptions about employment legal requirements
Speaking at APP2016, Tina Scrine, industrial relations manager of the Guild’s Queensland branch tried to ‘bust’ what she says are seven especially prevalent myths among pharmacy owners.
1/ A three month probationary period applies to new employees
What was previously known as a probationary period no longer actually exists, she said.
Under the Fair Work Act 2009 to apply for unfair dismissal an employee must have completed a minimum period of employment of 6 months if the employer and associated entities employs 15 or more people, or 12 months if they employ fewer than 15 people.
2/ An employee can be terminated for any reason during their qualifying period
Regardless of whether an employee has completed a qualifying period or not, they can pursue a general protections dispute if terminated for a reason such ads temporary absence due to illness or taking leave.
There is a reverse onus of proof in these cases. You have to prove your reason for terminating the employee. And documentary evidence is vital, Scrine says.
In addition, the amounts that can be awarded are uncapped with a court able ot award a wronged employee whatever it thinks is reasonable.
3/ An employee can only be dismissed after 3 warnings – 1 verbal and 2 written
The number of warnings relevant to a dismissal depends on the circumstances of each case, she says.
A dismissal which is “harsh, unjust or unreasonable” (in relation to the reason, process or outcome) is considered as an unfair dismissal. A reasonable amount of time should be allowed between warnings and dismissal.
The Fair Work Commission will consider a range of factors including previous warnings. Scrine says there is no written template that is followed, but again advises keeping thorough documentary evidence.
4/ Employees don’t have to be paid for time spent opening/closing the pharmacy or attending training and staff meetings outside their working hours
If the work is required and authorised, then they must be paid accordingly, she says, and substitutes such as providing pizza during post-work training is not satisfactory.
5/ Deductions can be made from employees’ wages where they are responsible for a till shortfall or a customer not being charged correctly
An employer cannot deduct money if it benefits the employer directly or indirectly and is unreasonable under the circumstances, she says.
However deductions can be made for unauthorised use of a company credit card or work phone.
6/ Pharmacists can be engaged as contractors if they provide an ABN
In a nutshell, an employee has a contract of service, while a contractor has a contract for service. A contractor is someone that can negotiate terms, will invoice you for their work etc.
The Federal government provides a tool for distinguishing a contractor.
7/ There is no contract of employment if it’s not in writing
A contact of employment can be verbal or in writing, provided there is an offer which is accepted, and that there is intention, consideration and capacity.