Legal Challenges in the Workplace in 2020 and 2021

The unexpected COVID 19 pandemic undisputedly took the world by storm, with its effects stretching out to almost all sectors of the economy. Perhaps the most eminent of this was that most employees were now legally required to do their work from home. This was not limited to top-level employees like personnel managers, who now had to find a way to manage their employees remotely, and sufficiently enough to get the job done.

Other challenges included understanding around stand downs, JobKeeper or Wage Subsidies and redundancies, changes to Awards specifically because of the pandemic, dealing with illness and injury in a changed environment, and difficulties with performance management.

The pandemic caused a significant downturn in business confidence, and immediate responses to the pandemic meant many employers were uncertain about the future of work. As we all got to work from home during lockdown, the notions of work and productive work were brought to the boardroom tables, and with it the concerns regarding productivity and performance management in a remote working context.

Organisations also had to deal with a plethora of unfair dismissal and general application claims, as well as some issues with contracts and policies insufficient to deal with a pandemic or major changes in the world of work. Finally, uncertainty was at its highest with a number of "Zombie Companies" relying upon JobKeeper or Wage Subsidies to stay afloat.

"In the future, organisations should be prepared for a dismissal claim for every single termination and ask themselves: has the risk and liability been assessed in this context? If so, what were the steps taken to mitigate the risk and liability? Policies, procedures and contracts need to be overhauled and reviewed on a regular basis. Finally, management communication and transparency must be reviewed too in the context of the pandemic to assess and adapt to the new world of work."

Jonathan Mamaril first mentions a steady increase in unfair dismissal and general protections claims in 2021.As laws may change around EBAs and the BOOT Test, it is likely to see more EBAs being put up. The gig economy should increase their value over time, more and more businesses will be established, targeting a very unique niche with a specific skillset. Changes to Awards may provide further flexibility. The last prediction would be a rise in underpayment claims and "wage theft" cases.

"It's time to consider an HR strategy or, if you have one, reviewing it in the context of the pandemic and the changes that will likely need to be made."

Other legal issues must be considered, related to employment law issues, such as confidential information - use and misuse; terms and conditions being sufficient for paying terms; shareholder agreements; loan agreement; leases.

As mentioned before, 2020 has seen a rise of claims against employers. This legal risk should be assessed and addressed to solve them before problems occur. Contractual documents, and specifically employment contracts and contractor agreements need to be reviewed. Business leaders should consider the powers of legal professional privilege in engaging a law firm. Law firms and their expertise can be extremely advantageous in the context of difficult or larger scale issues around termination of employment or underpayment of wages.

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers and leads the Employment Law and Commercial Law teams.