September 3, 2025 • 16 mins
This week on Ask The Expert, Gareth Abdinor from Abdinor Employment Law joined the Afternoons team to unpack workplace-based questions.
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Speaker 1 (00:09):
You're listening to a podcast from News Talks be follow
this and our wide range of podcasts now on iHeartRadio.
Speaker 2 (00:16):
Gareth Abdenor is an employment, workplace and information expert and
director of Abdenaor Employment Law. He joins us once a
month to ask answer your questions on anything going on
in your workplace or if you're the boss, he is
the man to chat to, and he joins us once
again live from christ Cheer Mates.
Speaker 3 (00:32):
Good, Hey guys, we'll go straight to Tom A Tom,
you've got a question about ninety day trials.
Speaker 4 (00:39):
Yeah, or rather the exploitation of it. A year so, Gareth,
businesses overtween employees couldn't dismiss inside a ninety day trial,
and not an employer. I've been an employee, and I've
found myself being exploited with some big, big businesses building
(01:01):
up big prospect pipelines, paying significantly last commissions and doing
it in such a short time that they realize, oh,
they're going to have to pay a substantial salve of
money and commission to this person. The emperor and the
owners wanted to keep the money for themselves, And so
we're off inside the ninety day trials. We have to
(01:23):
worry about that, and we're close to parteline ourselves. Really
interesting to give you bes reasons for justifying your dismissal.
Speaker 5 (01:33):
Well, I guess the first question would be what does
the contract say about payment of these incentives. I know
a lot of people talk about ninety day trial periods
being misused and exploiting employees, but I've certainly never come
(01:55):
across a company that wants to go through the time
and cost of employing people just to get rid of
them in those first ninety days. And unless there's a reason.
Speaker 4 (02:07):
Well, can commissions an excess of a million dollars?
Speaker 5 (02:12):
Yeah, well, I mean that sounds like a good reason.
Speaker 4 (02:15):
And having to pay eighty percent of out the center
of the contract signed and then might not be any
profit in the business for a couple of years until
all the consents that have been lodged, I mean to prove,
so they could start from space in the ground.
Speaker 5 (02:30):
So well, I guess the thing to keep in mind
time is that while the ninety day tribe here it
does prevent you from raising a personal grievance for unfair dismissal,
it doesn't prevent you from raising a claim for breach
of good faith or disadvantage, and those are things that
could potentially apply here. So if you think that you're
(02:52):
entitled to payment of a big incentive, big commission, you
know it might be something that you want to get
some legal advice on, so good luck.
Speaker 4 (03:02):
Example, it's all if it's say the contract is signed
after I've been dismissed, I know it's going to sign,
but then signed the ninety days after being dismissed, can
I go them for lots of revenue commission?
Speaker 5 (03:21):
Well, I think that might be difficult if the contract
is only signed after you've left, but potentially, if you've
got any evidence, you could potentially have a claim for
breuch of good faith. Anyway worth looking into.
Speaker 2 (03:37):
Yeah, block Tom all the best, Tom, thanks for ringing through.
One hundred and eighty ten eight year is the number
to call just on the ninety day trials. I mean,
as you mentioned before, beneficial there for employers to take
on somebody and if it doesn't quite work out, then
there's the ability there to say, hey, sorry, it wasn't
a good partnership. But the idea, you know that the
people saying that it can be used to take advantage
(03:58):
of workers. At the same time, for employers. They're still
taking on quite a big investment, right, bringing on anybody
for ninety days, you're still paying them, you're training them up,
not too much tentsical reason. If they're a good worker
to DITCHM at that point.
Speaker 5 (04:12):
That's that's a bang on the money, Tyler. I know
people talk about these ninety day trials being misused in practice.
I just don't see it. That's not to say that
it doesn't happen, but I definitely don't think it's as
common as people make out.
Speaker 3 (04:26):
Yeah, all right, we've got to text here from Sharon.
Good afternoon. I have a question regarding the recent changes
to the Holiday Act, specifically how they affect shift workers.
I'm employed in a permanent, part time role for family reasons,
but every fortnight work closer to a full time contract.
The law changes mean that I can no longer accrue
holidays on days work only on my contracted hours, but
(04:51):
I'm going to get paid holiday leave based on the
previous twelve weeks.
Speaker 5 (04:55):
This does seem can you can you hear me screaming
and running from the building The old.
Speaker 6 (05:00):
Holiday legislationship strikes again.
Speaker 3 (05:04):
No. I always impressed that you can understand what we're
reading out because I just ah, you know you've heard
it all before.
Speaker 5 (05:14):
Yeah, I mean it sounds to me that this person's
not happy with the law change. Unfortunately, there's nothing I
can do about that, but the Holidays Act, it's not
a great piece of legislation. Let's just leave it at that.
Speaker 6 (05:29):
Yeah, good luck, Sharon.
Speaker 2 (05:30):
Oh A one hundred eighty ten eighty is the number
to call if you've got a question for Gareth. Now
is your opportunity. Nineteen nineteen is the text number as well, And.
Speaker 3 (05:39):
As usual, we've got a smoke in question next.
Speaker 6 (05:41):
Oh, that's going to be good.
Speaker 2 (05:42):
We are joined by Gareth at Denor. He's an employment
workplace information expert and director at ad Denor Employment Law
and he is here to answer any curly questions you've
got about your place of work.
Speaker 6 (05:53):
Oh, one hundred and eighty ten eighty to number of cooll.
Speaker 3 (05:55):
We'll go straight to the text from Chris. Hey, Gareth,
I'm an employer. Would you consider a staff member using
one hundred and four to six days since the start
of twenty twenty one excessive? Not all paid out, but
still days off all the same, Thank you?
Speaker 5 (06:09):
Yes, I would A lot of sick days. That's what
we're twenty five a year roughly. If you think that
the standard amount that you get is ten, that's quite
a bit. I definitely think it's a red flag, and
(06:30):
I'd be looking into are there are there any medical
conditions that are affecting this employee? Are there other issues
that are impacting on their health? I'd definitely be looking
closer at it because that does not sound normal.
Speaker 3 (06:49):
So what do you like if someone's having un reasonable
amounts of six days?
Speaker 4 (06:54):
What?
Speaker 5 (06:55):
What?
Speaker 3 (06:55):
What excessive sick days? So what are you what's your
recourse at that point?
Speaker 5 (06:59):
Well, you you start consulting with them in good faith,
raise it as an issue, and ask for more information.
Increasingly there are people when roles that medically are just
not able to perform the role that they've been employed
to do and the general rules. You consult with the
mask for more information, and ultimately it may be it
(07:24):
may be that the employment gets terminated.
Speaker 3 (07:26):
Now I have to ask this next question because I
teased it before. I think we've had a very similar
one before, but I can't remember the answer. Do you
have any rights as a smoker?
Speaker 6 (07:38):
There's more?
Speaker 3 (07:39):
Here we go, Here we go. First, it was outside.
Now we are not allowed in front of the building.
Now my manager says, we aren't even allowed to smoke
down the road. Surely I can do what I like
on my break if I'm fifty meters from work. Do
they own me that much when I am on the clock.
Speaker 5 (07:57):
Yeah, That's that's one where I'm not sure the smoker
is going to get too much sympathy from the colleagues.
And technically the work place needs to be smoke free
in all indoor areas. A lot of work places do
outlaw smoking in outdoor areas that are still considered the
(08:20):
workplace directly outside the building is often and no no
be five obvious reasons can reflect negatively on the business.
I guess down the street, yeah, I think the employer
is most probably pushing it there, as.
Speaker 1 (08:39):
They are.
Speaker 3 (08:42):
First they meet us from work.
Speaker 5 (08:43):
Yeah, I think they're going to be struggling with that one.
Speaker 3 (08:46):
I guess maybe if you're wearing a uniform of the work, you.
Speaker 5 (08:51):
Know, and if you're wearing a uniform or something, yeap,
that could be an issue.
Speaker 3 (08:57):
But I mean, am I not going to go to
a toy shop just because I've seen someone smoking.
Speaker 6 (09:00):
That works to put me off. This is a good question.
Speaker 2 (09:04):
Get a guys and Gareth, I've, according to HR after
a work party, we're a colleague, let loose on what
they were earning. I wasn't drinking, but took that information
to the boss as it was far more than I
get for a similar job and wanted them to match.
They've now claimed that I coerced that information unfairly out
of that worker.
Speaker 3 (09:20):
What are my rights?
Speaker 5 (09:22):
Well, I guess it sounds like it's going to come
down to your word against your colleagues work, and which
one's more believable. If you did coerce them, that's a
big problem. Of course, must probably not helpful if you'd
both been drinking. Yeah, yeah, I mean it used to be.
(09:44):
It used to be that you could prevent your employees
from disclosing their their wage details, their salary. Due to
a recent law change, you can't do that anymore. So
if they choose to share it, that's all good.
Speaker 3 (10:00):
How do you coerce someone's salary out of them by them.
Speaker 6 (10:04):
A few more beers? I don't know.
Speaker 5 (10:06):
Yeah, I think that's coucion.
Speaker 3 (10:09):
This one is certainly a sort of he says, She says,
She says, she says type situation as well. I'm being
accused of bullying by a workmate manager has talked to me,
I'm not bullying. It's a strategy. What is the best
way to argue prove that bullying acquizations are false and malicious?
It's just being assumed that the bullying is real with
(10:31):
no evidence, just to completely made up accusation. How do
I defend myself?
Speaker 5 (10:37):
It's not an easy one, that's for sure. Where there
are bullying allegations, I would expect that there's a robust
investigation before any findings. Sometimes there isn't any evidence, and
it really is up to the investigator to decide credibility,
decide who they believe. But that should be done in
a robust way. So you can't just accept that someone's
(11:01):
being bullied based on their say. So that would not
be reasonable.
Speaker 3 (11:05):
So it would be, you know, from his perspective or
her perspective, you say, show me the evidence.
Speaker 5 (11:12):
Yeah, and say, well, where's the investigation?
Speaker 3 (11:15):
Has anyone else seen this? Is there an email chain,
a text chain? Is they showing me the evidence for us?
It's just on saying I don't bully and you're saying
I do, yeah.
Speaker 5 (11:24):
And these days, it's almost inevitable that when someone's being
performance managed or they are underperforming at work, as soon
as they come under the microscope they claim they being bullied.
It happens more often than not. So you know, some
people are getting bullied, but I wouldn't just be accepting
it on face value.
Speaker 2 (11:45):
Yeah, this question has just come through. Hi, Gareth, I
am a contractor. I've contracted to the same not for
profit organization for three years and they are my only client.
Does this put me or the organization in a difficult
position if we continue to operate like this, or should
I become an employee? And if so, what are the
benefits for me and the organization?
Speaker 5 (12:07):
Goodness me, there's a lot in that one. Well, I
guess the first one is there is a law change
that has been proposed by the government which is going
through the process now, which would if you meet all
of the factors, you would clearly be a contractor. It
doesn't matter how long you have contracted to an organization.
(12:27):
That's not law yet, but it is expected to be
pushed through sometime this year. Whether you should stay a
contract or an employee, that's a difficult question for me
to answer because they're pluses and minuses to both. Do
you want to be working for yourself? Do you want
to have the flexibility that you could potentially turn work away?
(12:51):
You know, as an employee, you don't have a lot
of those choices. But yes, if you have been contracting
to the same organization for three years, there is potentially
some risk that a court would consider that you're an employee.
The risk isn't really on you, though, it's more on
(13:12):
the organization that you're contracting to.
Speaker 6 (13:14):
Yeah, very interesting, good luck to that texter.
Speaker 3 (13:16):
A lot of text coming through on the bullying thing.
What is defined as bullying, But it's a complicated I
yelled at the staff member who was acting in an
unsafe man manner on site, and he is complaining of bullying.
So yelling because say, if it's in a situation I
guess where someone's let's imagine a situation. They're in a
(13:37):
dangerous position, they could hurt themselves, and you go, what
are you doing you'm up at Yeah, buddy, kill yourself
up there? I mean, is that bullying?
Speaker 5 (13:46):
I'd say it's unlikely that that would be bullying. Generally,
bullying needs to be repeated unreasonable behavior. There are various
definitions for it, but yelling at a person once in
circumstances where there's a legitimate reason for it, I'd be
(14:08):
hard pushed to consider that bullying.
Speaker 2 (14:11):
Yeah, I mean it's very easy to make a bullying accusation,
isn't it, And I imagine that can happen. So, as
you said before, that investigation to make sure is it
really bullying or do you just not get on It's
probably a critical point, right.
Speaker 3 (14:26):
I mean, the idea of bullying has evenly changed over
the years. It certainly is in some people's eyes. Hi,
we have an employee that's been off sick. We always
get these ones for three months. We recently found out
that the last five doctors' notes were forded, so has
been dismissed. However, he still has many company items laptops, keys,
et cetera. Can we legally or not turn up at
(14:48):
his address and get the items back? Otherwise we have
to change all the keys and locks and passwords.
Speaker 5 (14:54):
Thanks Gosha Man. That's kind of getting outside of employment
law into potentially a criminal law there. Vigility justice, I
think you should most probably ask for the things first
before you send the heavies round. But you know, if
it's if it's your property, you're entitled to try and
(15:14):
recover it. But yeah, I wouldn't be I wouldn't be
taking vigilante justice.
Speaker 6 (15:21):
Good advice.
Speaker 3 (15:22):
My employer wants to track my audio and screen at home?
Is that legal?
Speaker 5 (15:28):
Track audio at home and screen at home?
Speaker 3 (15:32):
That's oh, that's weird.
Speaker 6 (15:33):
No, the screen is quite common, isn't it. But the audio?
Speaker 5 (15:36):
Yeah, the screen is quite common because you know I
see it.
Speaker 3 (15:40):
So working from home would be well.
Speaker 5 (15:42):
Working from home, there are lots of these devices that
record whether you're actually using the keyboard, whether you're using
the mouse. Of course, they've invented things that wiggle your mouse,
whether whether you're working or not. I'd be very concerned
about recording audio. That's very rarely acceptable.
Speaker 3 (16:05):
Yeah, so I read that completely wrong.
Speaker 4 (16:08):
Night.
Speaker 6 (16:08):
I don't know what's not a sound be hearing as well. Yeah,
there's more.
Speaker 3 (16:12):
Sense to do it well in working hours.
Speaker 6 (16:14):
But yeah, all right, lover it.
Speaker 2 (16:16):
Gareth, thanks you for less creepy exactly, Gareth fantastic has
always Thank you very much for coming in studio, and
we'll catch you again in about.
Speaker 5 (16:23):
A month's sign sounds good, thanks guys.
Speaker 2 (16:26):
That is Gareth abdenor Employment, work Place and Information Experts.
You can go visit his website if you want to
get a hold of him. Abdenorlaw dot in Z's and
we I've got to read this out. The content of
the segment is general in nature and not legal advice.
Any information discussed is not intended to be a substitute
for obtaining specific professional advice and shouldn't be relied upon
as such.
Speaker 1 (16:46):
For more from News Talks B listen live on air
or online, and keep our shows with you wherever you
go with our podcasts on Iartradio
You're listening to a podcast from News Talks be follow
this and our wide range of podcasts now on iHeartRadio.
Speaker 2 (00:16):
Gareth Abdenor is an employment, workplace and information expert and
director of Abdenaor Employment Law. He joins us once a
month to ask answer your questions on anything going on
in your workplace or if you're the boss, he is
the man to chat to, and he joins us once
again live from christ Cheer Mates.
Speaker 3 (00:32):
Good, Hey guys, we'll go straight to Tom A Tom,
you've got a question about ninety day trials.
Speaker 4 (00:39):
Yeah, or rather the exploitation of it. A year so, Gareth,
businesses overtween employees couldn't dismiss inside a ninety day trial,
and not an employer. I've been an employee, and I've
found myself being exploited with some big, big businesses building
(01:01):
up big prospect pipelines, paying significantly last commissions and doing
it in such a short time that they realize, oh,
they're going to have to pay a substantial salve of
money and commission to this person. The emperor and the
owners wanted to keep the money for themselves, And so
we're off inside the ninety day trials. We have to
(01:23):
worry about that, and we're close to parteline ourselves. Really
interesting to give you bes reasons for justifying your dismissal.
Speaker 5 (01:33):
Well, I guess the first question would be what does
the contract say about payment of these incentives. I know
a lot of people talk about ninety day trial periods
being misused and exploiting employees, but I've certainly never come
(01:55):
across a company that wants to go through the time
and cost of employing people just to get rid of
them in those first ninety days. And unless there's a reason.
Speaker 4 (02:07):
Well, can commissions an excess of a million dollars?
Speaker 5 (02:12):
Yeah, well, I mean that sounds like a good reason.
Speaker 4 (02:15):
And having to pay eighty percent of out the center
of the contract signed and then might not be any
profit in the business for a couple of years until
all the consents that have been lodged, I mean to prove,
so they could start from space in the ground.
Speaker 5 (02:30):
So well, I guess the thing to keep in mind
time is that while the ninety day tribe here it
does prevent you from raising a personal grievance for unfair dismissal,
it doesn't prevent you from raising a claim for breach
of good faith or disadvantage, and those are things that
could potentially apply here. So if you think that you're
(02:52):
entitled to payment of a big incentive, big commission, you
know it might be something that you want to get
some legal advice on, so good luck.
Speaker 4 (03:02):
Example, it's all if it's say the contract is signed
after I've been dismissed, I know it's going to sign,
but then signed the ninety days after being dismissed, can
I go them for lots of revenue commission?
Speaker 5 (03:21):
Well, I think that might be difficult if the contract
is only signed after you've left, but potentially, if you've
got any evidence, you could potentially have a claim for
breuch of good faith. Anyway worth looking into.
Speaker 2 (03:37):
Yeah, block Tom all the best, Tom, thanks for ringing through.
One hundred and eighty ten eight year is the number
to call just on the ninety day trials. I mean,
as you mentioned before, beneficial there for employers to take
on somebody and if it doesn't quite work out, then
there's the ability there to say, hey, sorry, it wasn't
a good partnership. But the idea, you know that the
people saying that it can be used to take advantage
(03:58):
of workers. At the same time, for employers. They're still
taking on quite a big investment, right, bringing on anybody
for ninety days, you're still paying them, you're training them up,
not too much tentsical reason. If they're a good worker
to DITCHM at that point.
Speaker 5 (04:12):
That's that's a bang on the money, Tyler. I know
people talk about these ninety day trials being misused in practice.
I just don't see it. That's not to say that
it doesn't happen, but I definitely don't think it's as
common as people make out.
Speaker 3 (04:26):
Yeah, all right, we've got to text here from Sharon.
Good afternoon. I have a question regarding the recent changes
to the Holiday Act, specifically how they affect shift workers.
I'm employed in a permanent, part time role for family reasons,
but every fortnight work closer to a full time contract.
The law changes mean that I can no longer accrue
holidays on days work only on my contracted hours, but
(04:51):
I'm going to get paid holiday leave based on the
previous twelve weeks.
Speaker 5 (04:55):
This does seem can you can you hear me screaming
and running from the building The old.
Speaker 6 (05:00):
Holiday legislationship strikes again.
Speaker 3 (05:04):
No. I always impressed that you can understand what we're
reading out because I just ah, you know you've heard
it all before.
Speaker 5 (05:14):
Yeah, I mean it sounds to me that this person's
not happy with the law change. Unfortunately, there's nothing I
can do about that, but the Holidays Act, it's not
a great piece of legislation. Let's just leave it at that.
Speaker 6 (05:29):
Yeah, good luck, Sharon.
Speaker 2 (05:30):
Oh A one hundred eighty ten eighty is the number
to call if you've got a question for Gareth. Now
is your opportunity. Nineteen nineteen is the text number as well, And.
Speaker 3 (05:39):
As usual, we've got a smoke in question next.
Speaker 6 (05:41):
Oh, that's going to be good.
Speaker 2 (05:42):
We are joined by Gareth at Denor. He's an employment
workplace information expert and director at ad Denor Employment Law
and he is here to answer any curly questions you've
got about your place of work.
Speaker 6 (05:53):
Oh, one hundred and eighty ten eighty to number of cooll.
Speaker 3 (05:55):
We'll go straight to the text from Chris. Hey, Gareth,
I'm an employer. Would you consider a staff member using
one hundred and four to six days since the start
of twenty twenty one excessive? Not all paid out, but
still days off all the same, Thank you?
Speaker 5 (06:09):
Yes, I would A lot of sick days. That's what
we're twenty five a year roughly. If you think that
the standard amount that you get is ten, that's quite
a bit. I definitely think it's a red flag, and
(06:30):
I'd be looking into are there are there any medical
conditions that are affecting this employee? Are there other issues
that are impacting on their health? I'd definitely be looking
closer at it because that does not sound normal.
Speaker 3 (06:49):
So what do you like if someone's having un reasonable
amounts of six days?
Speaker 4 (06:54):
What?
Speaker 5 (06:55):
What?
Speaker 3 (06:55):
What excessive sick days? So what are you what's your
recourse at that point?
Speaker 5 (06:59):
Well, you you start consulting with them in good faith,
raise it as an issue, and ask for more information.
Increasingly there are people when roles that medically are just
not able to perform the role that they've been employed
to do and the general rules. You consult with the
mask for more information, and ultimately it may be it
(07:24):
may be that the employment gets terminated.
Speaker 3 (07:26):
Now I have to ask this next question because I
teased it before. I think we've had a very similar
one before, but I can't remember the answer. Do you
have any rights as a smoker?
Speaker 6 (07:38):
There's more?
Speaker 3 (07:39):
Here we go, Here we go. First, it was outside.
Now we are not allowed in front of the building.
Now my manager says, we aren't even allowed to smoke
down the road. Surely I can do what I like
on my break if I'm fifty meters from work. Do
they own me that much when I am on the clock.
Speaker 5 (07:57):
Yeah, That's that's one where I'm not sure the smoker
is going to get too much sympathy from the colleagues.
And technically the work place needs to be smoke free
in all indoor areas. A lot of work places do
outlaw smoking in outdoor areas that are still considered the
(08:20):
workplace directly outside the building is often and no no
be five obvious reasons can reflect negatively on the business.
I guess down the street, yeah, I think the employer
is most probably pushing it there, as.
Speaker 1 (08:39):
They are.
Speaker 3 (08:42):
First they meet us from work.
Speaker 5 (08:43):
Yeah, I think they're going to be struggling with that one.
Speaker 3 (08:46):
I guess maybe if you're wearing a uniform of the work, you.
Speaker 5 (08:51):
Know, and if you're wearing a uniform or something, yeap,
that could be an issue.
Speaker 3 (08:57):
But I mean, am I not going to go to
a toy shop just because I've seen someone smoking.
Speaker 6 (09:00):
That works to put me off. This is a good question.
Speaker 2 (09:04):
Get a guys and Gareth, I've, according to HR after
a work party, we're a colleague, let loose on what
they were earning. I wasn't drinking, but took that information
to the boss as it was far more than I
get for a similar job and wanted them to match.
They've now claimed that I coerced that information unfairly out
of that worker.
Speaker 3 (09:20):
What are my rights?
Speaker 5 (09:22):
Well, I guess it sounds like it's going to come
down to your word against your colleagues work, and which
one's more believable. If you did coerce them, that's a
big problem. Of course, must probably not helpful if you'd
both been drinking. Yeah, yeah, I mean it used to be.
(09:44):
It used to be that you could prevent your employees
from disclosing their their wage details, their salary. Due to
a recent law change, you can't do that anymore. So
if they choose to share it, that's all good.
Speaker 3 (10:00):
How do you coerce someone's salary out of them by them.
Speaker 6 (10:04):
A few more beers? I don't know.
Speaker 5 (10:06):
Yeah, I think that's coucion.
Speaker 3 (10:09):
This one is certainly a sort of he says, She says,
She says, she says type situation as well. I'm being
accused of bullying by a workmate manager has talked to me,
I'm not bullying. It's a strategy. What is the best
way to argue prove that bullying acquizations are false and malicious?
It's just being assumed that the bullying is real with
(10:31):
no evidence, just to completely made up accusation. How do
I defend myself?
Speaker 5 (10:37):
It's not an easy one, that's for sure. Where there
are bullying allegations, I would expect that there's a robust
investigation before any findings. Sometimes there isn't any evidence, and
it really is up to the investigator to decide credibility,
decide who they believe. But that should be done in
a robust way. So you can't just accept that someone's
(11:01):
being bullied based on their say. So that would not
be reasonable.
Speaker 3 (11:05):
So it would be, you know, from his perspective or
her perspective, you say, show me the evidence.
Speaker 5 (11:12):
Yeah, and say, well, where's the investigation?
Speaker 3 (11:15):
Has anyone else seen this? Is there an email chain,
a text chain? Is they showing me the evidence for us?
It's just on saying I don't bully and you're saying
I do, yeah.
Speaker 5 (11:24):
And these days, it's almost inevitable that when someone's being
performance managed or they are underperforming at work, as soon
as they come under the microscope they claim they being bullied.
It happens more often than not. So you know, some
people are getting bullied, but I wouldn't just be accepting
it on face value.
Speaker 2 (11:45):
Yeah, this question has just come through. Hi, Gareth, I
am a contractor. I've contracted to the same not for
profit organization for three years and they are my only client.
Does this put me or the organization in a difficult
position if we continue to operate like this, or should
I become an employee? And if so, what are the
benefits for me and the organization?
Speaker 5 (12:07):
Goodness me, there's a lot in that one. Well, I
guess the first one is there is a law change
that has been proposed by the government which is going
through the process now, which would if you meet all
of the factors, you would clearly be a contractor. It
doesn't matter how long you have contracted to an organization.
(12:27):
That's not law yet, but it is expected to be
pushed through sometime this year. Whether you should stay a
contract or an employee, that's a difficult question for me
to answer because they're pluses and minuses to both. Do
you want to be working for yourself? Do you want
to have the flexibility that you could potentially turn work away?
(12:51):
You know, as an employee, you don't have a lot
of those choices. But yes, if you have been contracting
to the same organization for three years, there is potentially
some risk that a court would consider that you're an employee.
The risk isn't really on you, though, it's more on
(13:12):
the organization that you're contracting to.
Speaker 6 (13:14):
Yeah, very interesting, good luck to that texter.
Speaker 3 (13:16):
A lot of text coming through on the bullying thing.
What is defined as bullying, But it's a complicated I
yelled at the staff member who was acting in an
unsafe man manner on site, and he is complaining of bullying.
So yelling because say, if it's in a situation I
guess where someone's let's imagine a situation. They're in a
(13:37):
dangerous position, they could hurt themselves, and you go, what
are you doing you'm up at Yeah, buddy, kill yourself
up there? I mean, is that bullying?
Speaker 5 (13:46):
I'd say it's unlikely that that would be bullying. Generally,
bullying needs to be repeated unreasonable behavior. There are various
definitions for it, but yelling at a person once in
circumstances where there's a legitimate reason for it, I'd be
(14:08):
hard pushed to consider that bullying.
Speaker 2 (14:11):
Yeah, I mean it's very easy to make a bullying accusation,
isn't it, And I imagine that can happen. So, as
you said before, that investigation to make sure is it
really bullying or do you just not get on It's
probably a critical point, right.
Speaker 3 (14:26):
I mean, the idea of bullying has evenly changed over
the years. It certainly is in some people's eyes. Hi,
we have an employee that's been off sick. We always
get these ones for three months. We recently found out
that the last five doctors' notes were forded, so has
been dismissed. However, he still has many company items laptops, keys,
et cetera. Can we legally or not turn up at
(14:48):
his address and get the items back? Otherwise we have
to change all the keys and locks and passwords.
Speaker 5 (14:54):
Thanks Gosha Man. That's kind of getting outside of employment
law into potentially a criminal law there. Vigility justice, I
think you should most probably ask for the things first
before you send the heavies round. But you know, if
it's if it's your property, you're entitled to try and
(15:14):
recover it. But yeah, I wouldn't be I wouldn't be
taking vigilante justice.
Speaker 6 (15:21):
Good advice.
Speaker 3 (15:22):
My employer wants to track my audio and screen at home?
Is that legal?
Speaker 5 (15:28):
Track audio at home and screen at home?
Speaker 3 (15:32):
That's oh, that's weird.
Speaker 6 (15:33):
No, the screen is quite common, isn't it. But the audio?
Speaker 5 (15:36):
Yeah, the screen is quite common because you know I
see it.
Speaker 3 (15:40):
So working from home would be well.
Speaker 5 (15:42):
Working from home, there are lots of these devices that
record whether you're actually using the keyboard, whether you're using
the mouse. Of course, they've invented things that wiggle your mouse,
whether whether you're working or not. I'd be very concerned
about recording audio. That's very rarely acceptable.
Speaker 3 (16:05):
Yeah, so I read that completely wrong.
Speaker 4 (16:08):
Night.
Speaker 6 (16:08):
I don't know what's not a sound be hearing as well. Yeah,
there's more.
Speaker 3 (16:12):
Sense to do it well in working hours.
Speaker 6 (16:14):
But yeah, all right, lover it.
Speaker 2 (16:16):
Gareth, thanks you for less creepy exactly, Gareth fantastic has
always Thank you very much for coming in studio, and
we'll catch you again in about.
Speaker 5 (16:23):
A month's sign sounds good, thanks guys.
Speaker 2 (16:26):
That is Gareth abdenor Employment, work Place and Information Experts.
You can go visit his website if you want to
get a hold of him. Abdenorlaw dot in Z's and
we I've got to read this out. The content of
the segment is general in nature and not legal advice.
Any information discussed is not intended to be a substitute
for obtaining specific professional advice and shouldn't be relied upon
as such.
Speaker 1 (16:46):
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