Help! Australian employment law - Employee off with stress


I am hoping that someone can help me ! 

We have a small set up in Australia with 5 employees and a couple of self employed consultants.  The director and another employee have never got on very well we have done lots to try to make a better working relationship for them including the owner of the company flying out there - its basically a clash of personalities.  The employee resigned and said he will work as a consultant from home home part time.  Then the next week he went off sick with stress caused by his colleague and working environment.  He was certificated for a week and has asked to be off unpaid from now until he starts as a consultant at the end of Jan (last day as an employee would be 31 Dec)

He is being nice about the whole thing saying he needs time away and said he is having counselling.  We have offered to pay the counselling but he said he gets it with his health insurance.  What else should we be doing? we are trying to look after him and do not want to lose him even if he is a consultant thats fine but I am wondering if there is any risk legally? officially his last date is 31st December.  He is on unpaid leave until then - a that point should we still process him as a leaver?

Any help or a point in the right direction will be so appreciated :)

Thank you!

  • Hello! Is anyone able to help? Thank you so much!
  • In reply to Katie:

    Hi Katie

    The Fair Work Ombudsman is a great source of information on employment rights in Australia, please see link below;

  • In reply to Katie:

    HI Katie,
    Well in terms of risk, there is definitely a risk here. Keeping aside the sickness absence and the cause for the sickness (i.e. stress). Let's assume he goes ahead with the resignation and does not claim contructive dismissal (which is a risk here given the relationship with the Director). He then goes ahead and becomes an Independent Consultant and works part time for you. You then need to ask
    What is the new job? Is it the same one he is currently doing?
    Will he be given instructions by the company and you will you dictate what hours he can work?
    Will he be using company's equiment i.e. laptop etc.
    Is he free to engage somebody else in his palce to carry put the work?

    If answer to all the question (except for the last one) is Yes then he is not an Independent Consultant/Contractor in a true sense. He therefore, may be considered an employee (if challenged by him later on) which would mean he can claim all the employee benefit (annual leave, superannuation etc) and you will be also be liable for all social security payments etc.

    Hope that helps

  • In reply to Katie:

    Can't help with your specific question, but you may want to try posting on the HRBuzz forum in Australia - to be honest I think you're you're more likely to get an informed reply there than here (except by a miracle of luck)


    There are probably other Oz HR forums, but I have found this an interesting one to "lurk" in occasionally (without posting) so as to get to grips with the basics down under