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Speaker 1: You're listening to a podcast from News Talks be follow

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Speaker 1: this and our wide range of podcasts now on iHeartRadio.

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Speaker 2: Gareth Abdenor is an employment, workplace and information expert and

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Speaker 2: director of Abdenaor Employment Law. He joins us once a

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Speaker 2: month to ask answer your questions on anything going on

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Speaker 2: in your workplace or if you're the boss, he is

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Speaker 2: the man to chat to, and he joins us once

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Speaker 2: again live from christ Cheer Mates.

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Speaker 3: Good, Hey guys, we'll go straight to Tom A Tom,

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Speaker 3: you've got a question about ninety day trials.

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Speaker 4: Yeah, or rather the exploitation of it. A year so, Gareth,

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Speaker 4: businesses overtween employees couldn't dismiss inside a ninety day trial,

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Speaker 4: and not an employer. I've been an employee, and I've

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Speaker 4: found myself being exploited with some big, big businesses building

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Speaker 4: up big prospect pipelines, paying significantly last commissions and doing

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Speaker 4: it in such a short time that they realize, oh,

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Speaker 4: they're going to have to pay a substantial salve of

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Speaker 4: money and commission to this person. The emperor and the

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Speaker 4: owners wanted to keep the money for themselves, And so

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Speaker 4: we're off inside the ninety day trials. We have to

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Speaker 4: worry about that, and we're close to parteline ourselves. Really

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Speaker 4: interesting to give you bes reasons for justifying your dismissal.

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Speaker 5: Well, I guess the first question would be what does

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Speaker 5: the contract say about payment of these incentives. I know

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Speaker 5: a lot of people talk about ninety day trial periods

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Speaker 5: being misused and exploiting employees, but I've certainly never come

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Speaker 5: across a company that wants to go through the time

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Speaker 5: and cost of employing people just to get rid of

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Speaker 5: them in those first ninety days. And unless there's a reason.

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Speaker 4: Well, can commissions an excess of a million dollars?

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Speaker 5: Yeah, well, I mean that sounds like a good reason.

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Speaker 4: And having to pay eighty percent of out the center

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Speaker 4: of the contract signed and then might not be any

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Speaker 4: profit in the business for a couple of years until

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Speaker 4: all the consents that have been lodged, I mean to prove,

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Speaker 4: so they could start from space in the ground.

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Speaker 5: So well, I guess the thing to keep in mind

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Speaker 5: time is that while the ninety day tribe here it

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Speaker 5: does prevent you from raising a personal grievance for unfair dismissal,

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Speaker 5: it doesn't prevent you from raising a claim for breach

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Speaker 5: of good faith or disadvantage, and those are things that

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Speaker 5: could potentially apply here. So if you think that you're

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Speaker 5: entitled to payment of a big incentive, big commission, you

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Speaker 5: know it might be something that you want to get

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Speaker 5: some legal advice on, so good luck.

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Speaker 4: Example, it's all if it's say the contract is signed

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Speaker 4: after I've been dismissed, I know it's going to sign,

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Speaker 4: but then signed the ninety days after being dismissed, can

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Speaker 4: I go them for lots of revenue commission?

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Speaker 5: Well, I think that might be difficult if the contract

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Speaker 5: is only signed after you've left, but potentially, if you've

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Speaker 5: got any evidence, you could potentially have a claim for

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Speaker 5: breuch of good faith. Anyway worth looking into.

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Speaker 2: Yeah, block Tom all the best, Tom, thanks for ringing through.

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Speaker 2: One hundred and eighty ten eight year is the number

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Speaker 2: to call just on the ninety day trials. I mean,

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Speaker 2: as you mentioned before, beneficial there for employers to take

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Speaker 2: on somebody and if it doesn't quite work out, then

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Speaker 2: there's the ability there to say, hey, sorry, it wasn't

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Speaker 2: a good partnership. But the idea, you know that the

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Speaker 2: people saying that it can be used to take advantage

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Speaker 2: of workers. At the same time, for employers. They're still

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Speaker 2: taking on quite a big investment, right, bringing on anybody

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Speaker 2: for ninety days, you're still paying them, you're training them up,

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Speaker 2: not too much tentsical reason. If they're a good worker

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Speaker 2: to DITCHM at that point.

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Speaker 5: That's that's a bang on the money, Tyler. I know

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Speaker 5: people talk about these ninety day trials being misused in practice.

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Speaker 5: I just don't see it. That's not to say that

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Speaker 5: it doesn't happen, but I definitely don't think it's as

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Speaker 5: common as people make out.

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Speaker 3: Yeah, all right, we've got to text here from Sharon.

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Speaker 3: Good afternoon. I have a question regarding the recent changes

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Speaker 3: to the Holiday Act, specifically how they affect shift workers.

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Speaker 3: I'm employed in a permanent, part time role for family reasons,

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Speaker 3: but every fortnight work closer to a full time contract.

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Speaker 3: The law changes mean that I can no longer accrue

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Speaker 3: holidays on days work only on my contracted hours, but

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Speaker 3: I'm going to get paid holiday leave based on the

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Speaker 3: previous twelve weeks.

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Speaker 5: This does seem can you can you hear me screaming

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Speaker 5: and running from the building The old.

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Speaker 6: Holiday legislationship strikes again.

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Speaker 3: No. I always impressed that you can understand what we're

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Speaker 3: reading out because I just ah, you know you've heard

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Speaker 3: it all before.

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Speaker 5: Yeah, I mean it sounds to me that this person's

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Speaker 5: not happy with the law change. Unfortunately, there's nothing I

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Speaker 5: can do about that, but the Holidays Act, it's not

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Speaker 5: a great piece of legislation. Let's just leave it at that.

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Speaker 6: Yeah, good luck, Sharon.

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Speaker 2: Oh A one hundred eighty ten eighty is the number

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Speaker 2: to call if you've got a question for Gareth. Now

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Speaker 2: is your opportunity. Nineteen nineteen is the text number as well, And.

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Speaker 3: As usual, we've got a smoke in question next.

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Speaker 6: Oh, that's going to be good.

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Speaker 2: We are joined by Gareth at Denor. He's an employment

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Speaker 2: workplace information expert and director at ad Denor Employment Law

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Speaker 2: and he is here to answer any curly questions you've

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Speaker 2: got about your place of work.

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Speaker 6: Oh, one hundred and eighty ten eighty to number of cooll.

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Speaker 3: We'll go straight to the text from Chris. Hey, Gareth,

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Speaker 3: I'm an employer. Would you consider a staff member using

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Speaker 3: one hundred and four to six days since the start

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Speaker 3: of twenty twenty one excessive? Not all paid out, but

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Speaker 3: still days off all the same, Thank you?

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Speaker 5: Yes, I would A lot of sick days. That's what

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Speaker 5: we're twenty five a year roughly. If you think that

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Speaker 5: the standard amount that you get is ten, that's quite

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Speaker 5: a bit. I definitely think it's a red flag, and

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Speaker 5: I'd be looking into are there are there any medical

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Speaker 5: conditions that are affecting this employee? Are there other issues

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Speaker 5: that are impacting on their health? I'd definitely be looking

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Speaker 5: closer at it because that does not sound normal.

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Speaker 3: So what do you like if someone's having un reasonable

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Speaker 3: amounts of six days?

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Speaker 4: What?

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Speaker 5: What?

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Speaker 3: What excessive sick days? So what are you what's your

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Speaker 3: recourse at that point?

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Speaker 5: Well, you you start consulting with them in good faith,

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Speaker 5: raise it as an issue, and ask for more information.

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Speaker 5: Increasingly there are people when roles that medically are just

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Speaker 5: not able to perform the role that they've been employed

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Speaker 5: to do and the general rules. You consult with the

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Speaker 5: mask for more information, and ultimately it may be it

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Speaker 5: may be that the employment gets terminated.

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Speaker 3: Now I have to ask this next question because I

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Speaker 3: teased it before. I think we've had a very similar

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Speaker 3: one before, but I can't remember the answer. Do you

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Speaker 3: have any rights as a smoker?

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Speaker 6: There's more?

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Speaker 3: Here we go, Here we go. First, it was outside.

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Speaker 3: Now we are not allowed in front of the building.

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Speaker 3: Now my manager says, we aren't even allowed to smoke

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Speaker 3: down the road. Surely I can do what I like

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Speaker 3: on my break if I'm fifty meters from work. Do

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Speaker 3: they own me that much when I am on the clock.

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Speaker 5: Yeah, That's that's one where I'm not sure the smoker

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Speaker 5: is going to get too much sympathy from the colleagues.

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Speaker 5: And technically the work place needs to be smoke free

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Speaker 5: in all indoor areas. A lot of work places do

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Speaker 5: outlaw smoking in outdoor areas that are still considered the

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Speaker 5: workplace directly outside the building is often and no no

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Speaker 5: be five obvious reasons can reflect negatively on the business.

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Speaker 5: I guess down the street, yeah, I think the employer

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Speaker 5: is most probably pushing it there, as.

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Speaker 1: They are.

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Speaker 3: First they meet us from work.

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Speaker 5: Yeah, I think they're going to be struggling with that one.

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Speaker 3: I guess maybe if you're wearing a uniform of the work, you.

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Speaker 5: Know, and if you're wearing a uniform or something, yeap,

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Speaker 5: that could be an issue.

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Speaker 3: But I mean, am I not going to go to

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Speaker 3: a toy shop just because I've seen someone smoking.

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Speaker 6: That works to put me off. This is a good question.

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Speaker 2: Get a guys and Gareth, I've, according to HR after

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Speaker 2: a work party, we're a colleague, let loose on what

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Speaker 2: they were earning. I wasn't drinking, but took that information

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Speaker 2: to the boss as it was far more than I

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Speaker 2: get for a similar job and wanted them to match.

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Speaker 2: They've now claimed that I coerced that information unfairly out

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Speaker 2: of that worker.

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Speaker 3: What are my rights?

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Speaker 5: Well, I guess it sounds like it's going to come

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Speaker 5: down to your word against your colleagues work, and which

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Speaker 5: one's more believable. If you did coerce them, that's a

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Speaker 5: big problem. Of course, must probably not helpful if you'd

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Speaker 5: both been drinking. Yeah, yeah, I mean it used to be.

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Speaker 5: It used to be that you could prevent your employees

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Speaker 5: from disclosing their their wage details, their salary. Due to

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Speaker 5: a recent law change, you can't do that anymore. So

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Speaker 5: if they choose to share it, that's all good.

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Speaker 3: How do you coerce someone's salary out of them by them.

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Speaker 6: A few more beers? I don't know.

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Speaker 5: Yeah, I think that's coucion.

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Speaker 3: This one is certainly a sort of he says, She says,

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Speaker 3: She says, she says type situation as well. I'm being

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Speaker 3: accused of bullying by a workmate manager has talked to me,

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Speaker 3: I'm not bullying. It's a strategy. What is the best

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Speaker 3: way to argue prove that bullying acquizations are false and malicious?

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Speaker 3: It's just being assumed that the bullying is real with

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Speaker 3: no evidence, just to completely made up accusation. How do

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Speaker 3: I defend myself?

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Speaker 5: It's not an easy one, that's for sure. Where there

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Speaker 5: are bullying allegations, I would expect that there's a robust

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Speaker 5: investigation before any findings. Sometimes there isn't any evidence, and

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Speaker 5: it really is up to the investigator to decide credibility,

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Speaker 5: decide who they believe. But that should be done in

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Speaker 5: a robust way. So you can't just accept that someone's

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Speaker 5: being bullied based on their say. So that would not

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Speaker 5: be reasonable.

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Speaker 3: So it would be, you know, from his perspective or

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Speaker 3: her perspective, you say, show me the evidence.

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Speaker 5: Yeah, and say, well, where's the investigation?

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Speaker 3: Has anyone else seen this? Is there an email chain,

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Speaker 3: a text chain? Is they showing me the evidence for us?

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Speaker 3: It's just on saying I don't bully and you're saying

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Speaker 3: I do, yeah.

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Speaker 5: And these days, it's almost inevitable that when someone's being

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Speaker 5: performance managed or they are underperforming at work, as soon

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Speaker 5: as they come under the microscope they claim they being bullied.

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Speaker 5: It happens more often than not. So you know, some

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Speaker 5: people are getting bullied, but I wouldn't just be accepting

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Speaker 5: it on face value.

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Speaker 2: Yeah, this question has just come through. Hi, Gareth, I

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Speaker 2: am a contractor. I've contracted to the same not for

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Speaker 2: profit organization for three years and they are my only client.

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Speaker 2: Does this put me or the organization in a difficult

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Speaker 2: position if we continue to operate like this, or should

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Speaker 2: I become an employee? And if so, what are the

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Speaker 2: benefits for me and the organization?

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Speaker 5: Goodness me, there's a lot in that one. Well, I

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Speaker 5: guess the first one is there is a law change

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Speaker 5: that has been proposed by the government which is going

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Speaker 5: through the process now, which would if you meet all

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Speaker 5: of the factors, you would clearly be a contractor. It

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Speaker 5: doesn't matter how long you have contracted to an organization.

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Speaker 5: That's not law yet, but it is expected to be

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Speaker 5: pushed through sometime this year. Whether you should stay a

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Speaker 5: contract or an employee, that's a difficult question for me

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Speaker 5: to answer because they're pluses and minuses to both. Do

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Speaker 5: you want to be working for yourself? Do you want

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Speaker 5: to have the flexibility that you could potentially turn work away?

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Speaker 5: You know, as an employee, you don't have a lot

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Speaker 5: of those choices. But yes, if you have been contracting

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Speaker 5: to the same organization for three years, there is potentially

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Speaker 5: some risk that a court would consider that you're an employee.

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Speaker 5: The risk isn't really on you, though, it's more on

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Speaker 5: the organization that you're contracting to.

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Speaker 6: Yeah, very interesting, good luck to that texter.

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Speaker 3: A lot of text coming through on the bullying thing.

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Speaker 3: What is defined as bullying, But it's a complicated I

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Speaker 3: yelled at the staff member who was acting in an

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Speaker 3: unsafe man manner on site, and he is complaining of bullying.

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Speaker 3: So yelling because say, if it's in a situation I

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Speaker 3: guess where someone's let's imagine a situation. They're in a

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Speaker 3: dangerous position, they could hurt themselves, and you go, what

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Speaker 3: are you doing you'm up at Yeah, buddy, kill yourself

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Speaker 3: up there? I mean, is that bullying?

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Speaker 5: I'd say it's unlikely that that would be bullying. Generally,

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Speaker 5: bullying needs to be repeated unreasonable behavior. There are various

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Speaker 5: definitions for it, but yelling at a person once in

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Speaker 5: circumstances where there's a legitimate reason for it, I'd be

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Speaker 5: hard pushed to consider that bullying.

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Speaker 2: Yeah, I mean it's very easy to make a bullying accusation,

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Speaker 2: isn't it, And I imagine that can happen. So, as

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Speaker 2: you said before, that investigation to make sure is it

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Speaker 2: really bullying or do you just not get on It's

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Speaker 2: probably a critical point, right.

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Speaker 3: I mean, the idea of bullying has evenly changed over

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Speaker 3: the years. It certainly is in some people's eyes. Hi,

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Speaker 3: we have an employee that's been off sick. We always

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Speaker 3: get these ones for three months. We recently found out

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Speaker 3: that the last five doctors' notes were forded, so has

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Speaker 3: been dismissed. However, he still has many company items laptops, keys,

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Speaker 3: et cetera. Can we legally or not turn up at

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Speaker 3: his address and get the items back? Otherwise we have

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Speaker 3: to change all the keys and locks and passwords.

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Speaker 5: Thanks Gosha Man. That's kind of getting outside of employment

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Speaker 5: law into potentially a criminal law there. Vigility justice, I

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Speaker 5: think you should most probably ask for the things first

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Speaker 5: before you send the heavies round. But you know, if

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Speaker 5: it's if it's your property, you're entitled to try and

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Speaker 5: recover it. But yeah, I wouldn't be I wouldn't be

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Speaker 5: taking vigilante justice.

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Speaker 6: Good advice.

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Speaker 3: My employer wants to track my audio and screen at home?

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Speaker 3: Is that legal?

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Speaker 5: Track audio at home and screen at home?

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Speaker 3: That's oh, that's weird.

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Speaker 6: No, the screen is quite common, isn't it. But the audio?

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Speaker 5: Yeah, the screen is quite common because you know I

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Speaker 5: see it.

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Speaker 3: So working from home would be well.

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Speaker 5: Working from home, there are lots of these devices that

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Speaker 5: record whether you're actually using the keyboard, whether you're using

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Speaker 5: the mouse. Of course, they've invented things that wiggle your mouse,

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Speaker 5: whether whether you're working or not. I'd be very concerned

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Speaker 5: about recording audio. That's very rarely acceptable.

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Speaker 3: Yeah, so I read that completely wrong.

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Speaker 4: Night.

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Speaker 6: I don't know what's not a sound be hearing as well. Yeah,

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Speaker 6: there's more.

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Speaker 3: Sense to do it well in working hours.

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Speaker 6: But yeah, all right, lover it.

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Speaker 2: Gareth, thanks you for less creepy exactly, Gareth fantastic has

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Speaker 2: always Thank you very much for coming in studio, and

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Speaker 2: we'll catch you again in about.

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Speaker 5: A month's sign sounds good, thanks guys.

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Speaker 2: That is Gareth abdenor Employment, work Place and Information Experts.

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Speaker 2: You can go visit his website if you want to

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Speaker 2: get a hold of him. Abdenorlaw dot in Z's and

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Speaker 2: we I've got to read this out. The content of

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Speaker 2: the segment is general in nature and not legal advice.

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Speaker 2: Any information discussed is not intended to be a substitute

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Speaker 2: for obtaining specific professional advice and shouldn't be relied upon

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Speaker 2: as such.

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Speaker 1: For more from News Talks B listen live on air

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Speaker 1: or online, and keep our shows with you wherever you

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