Can you legally deduct amounts from an employee's wages?

Employers are often required to make deductions from an employee's wages and may be unsure as to the various payments which may legally be deducted from an employee's wages. For example, many employment awards only allow deductions for voluntary superannuation contributions. This means that unless it is provided in a court order, or authorised by your employee, you cannot deduct any amount from your employees’ wages for any other reason.

Under the Fair Work Act 2009 (Cwlth) employers are permitted to deduct amounts from their employees wages, only if the employee consents to that arrangement in writing and it is principally for the employees benefit, or if the deduction is otherwise authorised under an agreement, award or law (court order). Other stipulations are that it must be reasonable, and if the employee is under 18 years old, their guardian or parent has authorised the deduction in writing.

Allowable deductions include salary sacrifice arrangements and payments into an employee's health fund.

If you have employees with Child Support Scheme obligations, you may have to withhold a certain amount from their wages. If this is that case, you will be contacted by the Child Support Agency and receive a Notice to Deduct Maintenance Payments from an Employee’s Salary or Wages. There is a possibility of penalties being imposed if the employer does not meet their obligations under the order. Additionally, the employer cannot make a deduction of child support that leaves an employee with a net of less than the Protected Earnings Amount (PEA) http://www.csa.gov.au/employers/pea.php

Alternatively, you may have employees subject to a garnishee order. This is a court order requiring that part of the wages owed to a particular employee (the debtor) be paid instead to that employee's creditor or the court. As with Child Support Scheme deductions, there are limits on how much of an employee's wage can be deducted under this arrangement. The deductions cannot reduce your net weekly amount to less than 100% of the standard weekly benefit. An amount of $403.70 (as at April 2010) must be left out of your pay each week for you. The remainder will be given to the Judgment Creditor. An employer is required to comply with a garnishee order. Failure to comply with the court order may result in the employer having to make good the moneys payable under the garnishee order unless the employer can successfully argue mitigating circumstances.

As an employer, it is recommended to have a policy in place to ensure you are dealing with salary deductions fairly and legally. You may want to consider including in your policy that any authorisation:

• must be in writing and be principally for the benefit of the employee;
• must specify the amount of the deduction authorised;
• can be varied if done so in writing;
• can be withdrawn by you or the employee at any time, provided that it is done in writing.

If the deduction is not authorised in the above manner, then you shouldn't facilitate it, unless an enterprise agreement, modern award, a law of a State/Territory/Commonwealth or an order of a Court/Tribunal authorises it. 

Contact Annette at End2End Business Solutions on (02) 8977 4002 should you require any assistance with establishing deductions.

Unfair dismissal and procedural fairness

If you are considering dismissing an employee for poor performance or misconduct, care must be exercised in order to ensure that it is not harsh, unjust or unreasonable, to avoid being exposed to an unfair dismissal claim. In these events, you should first ask yourself the following 3 questions:

1.  Is there a Valid Reason for the dismissal?

Consider the reason you are dismissing the employee. Can you prove the facts and circumstances surrounding the reason? Is the reason sound and is it also lawful?

The existence of a valid reason for termination is a critical consideration in establishing the fairness of the termination. The absence of a valid reason will almost certainly render the termination unfair. 

If a valid reason for dismissal has been established, the test is to then determine if procedural fairness was applied before the dismissal.

2.  Have you afforded the employee Procedural Fairness?

To comply with the requirement for Procedural Fairness, the employee must firstly be made aware of the allegations concerning their conduct, or given evidence that you consider justifies their dismissal, to enable them to respond. A copy of a written warning is the best way to demonstrate that this procedure has been followed, and it is recommended that this document is signed by the employee as an acknowledgment of receipt. Any warning you give should expressly state that continued underperformance could lead to the termination of their employment.

Secondly, the employee must be given a fair and reasonable opportunity to defend these allegations. If the reason for termination relates to their performance, you must also give them a reasonable opportunity to improve their performance (including offering assistance and training) in order to make sure you afford them procedural fairness.

3.  Is dismissal a fair and proportionate response?

After considering the employee's response, you should also consider if the punishment of dismissal fits the employee's "crime"? Or does the continued underperformance or misconduct warrant a further warning or counselling instead? You should also take into consideration circumstances such as the employee's length of service, mitigating factors such as illness/family difficulties, their age and the seriousness of the offence. 

Once you've asked and answered these 3 questions, you will significantly increase your prospects of defending an unfair dismissal claim if one arises. Failure of the employer to apply these tests before an employee’s dismissal can result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee or payment of compensation. Contact Annette at End2End Business Solutions on (02) 8977 4002 should you require any assistance when considering dismissing an employess or to simply obtain further information on employee dismissals.

How to deal with frequent sickies

Employee absence has a huge impact on your organisation. It affects staff morale, disrupts the work of others, and reduces the quality of work outputs. Absences carry costs, risks and productivity hits for your business.

Generally speaking, you cannot dismiss or discipline an employee for being absent due to sickness. Doing this may expose you to a claim of unfair dismissal, discrimination or unlawful termination, so this needs to be handled carefully and properly to reduce your risk of future complications.

To control the impact of absenteeism, you need to:

• see trends so you can control costs,
• manage your policies so you can minimise compliance risk, and
• identify workers with attendance issues so you can improve workforce productivity.

Here are a few sample ideas for you to consider implementing –you will find that simply announcing these measures to employees will reduce the number of sickies in your workplace.

• Identify the causes for an employee’s absenteeism. If you can find out why an employee is consistently absent, you can deal more effectively with the problem. Look for patterns in their absences.
•  Implement a thorough record system, including the date, duration and reason for each case. It is useful to set parameters for further action, ie after 4 absences in a 6 month period, meet with the employee to discuss further. Ensure that the employees are aware you are monitoring absences.   
•  It is also important that all employees know who they have to inform if they are off sick.  25% of employers now accept text or email messages about sickness, but a personal phone call makes it more difficult for the employee to fake illness.
•  Hold return to work interviews after every absence. This is a proven method of reducing sickness absence, especially for companies employing fewer than 250 people.
•  Your employee should be given a chance to improve their attendance levels before you begin disciplinary action. You should give clear documented warnings at every stage of the possible consequences of continued absences. If there is no improvement despite formal warnings, then dismissal is an option as a last resort.

It is advisable to speak to an HR Adviser at an early stage as the process must be handled carefully, fairly and consistently. This will ensure that you avoid employment tribunal claims of unfair dismissal or disability discrimination.