Hiring to fill a parental leave spot? Part 3

Part 3

In Part 1 of this series we looked at having the discussion with the departing employee about their impending leave. Then, in Part 2 of this series we looked at what to ask candidates to assess their willingness to take on a replacement fixed-term role. Now, in Part 3, we look at how you can document things to protect your business from risk and liability.

Documenting things with your departing employee

First, let’s consider your departing employee. What do you need to document? As set out in Part 1, we recommend that you send an email or letter to the departing employee setting out:

  • Your understanding about their end date and proposed return date (noting that they will likely need flexibility as to their return date but asking them to confirm their return date with at least four weeks’ notice prior to their return)
  •  Your understanding about how they plan to return to work (i.e. part time, flexible arrangements etc)
  • A brief summary of the replacement’s role
  • A commitment to helping them return to work in line with your legal obligations [this will provide them with comfort that you know your businesses legal obligations and will be supportive of them during this time of leave]

Top tip: when your employee returns to work, if they request a change to their work hours then you will need to redraft their employment contract to reflect the new terms. We can help with this so don’t hesitate to contact us.

Documenting things with your replacement employee

Second, your successful candidate. It’s important that you document the following in a letter of offer or employment contract with the replacement employee:

  •       The fixed term nature of the role
  •       The right of the business to provide early notice of termination should the departing employee want to return earlier than expected
  •       The start and expected end-date, subject to the notice of termination clause
  •       A termination clause that sets out when you can terminate and how much notice you will be giving
  •       The salary, reporting lines and any award coverage

Reminder: you must always give a new starter a copy of the Fair Work Information Statement otherwise risk a penalty for being in breach of legislation.

We recommend that a lawyer drafts or reviews this document so feel free to contact us about if you’re going down this process.

Transition tips

You should consider whether there is time to carry out a handover pre and post contract (i.e. to help the candidate on-board and then to help them pass the baton back to the employee post baby).

You should also consider how the two are going to communicate pre, during and post parental leave to ensure the continuation of tasks and duties. Are you going to provide them with each other’s mobile numbers and let them work it out? Are you going to prescribe regularly catch up meetings for the purpose of keeping in touch? NB: there are specific ‘keeping in touch’ legislative provisions to keep in mind.

Have a think about this part of the process as it could really make or break the transition process.

What next?

Now that you’ve followed due process it’s time to put your hard work into action. Ensure that you’ve got a signed copy of the replacement employee’s fixed term contract and keep that on their personnel file. Then, schedule into your diary some catch up times with both the departing employee (to ensure that you’re fulfilling your keeping in touch obligations – more on that to come – and regularly monitoring the progress and performance of your replacement employee).

How we can help your business

We can help your business with the following:

  • Help you through a discrimination, unfair dismissal or general protections (adverse action) claim
  • Help you implement or refuse flexible work arrangements in the best interests of the business and operational requirements
  • Draft fixed-term contracts for your maternity leave replacement
  • Draft a policy on flexible work to set parameters for employees and guidance for managers about how to handle flexible work practices in your business
  • Anti-discrimination, harassment and bullying training to fulfil your Work Health and Safety obligations and help your employees resolve things internally (to reduce the risk of a claim and minimise any harmful behaviour in your business)

Call us today to discuss your workplace needs on 03 9111 5660

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Jan 22, 2018

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