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Parties must be responsive and communicative

Good faith requires employees, unions and employers to communicate clearly, accurately and in a timely manner. This includes responding to concerns raised in a genuine and honest way.

Being ‘responsive and communicative’ is a wide duty

  • raising concerns as soon as possible with each other, before taking any other action
  • responding to any concerns when they are raised
  • clarifying any uncertainty quickly
  • responding to questions or issues raised during an investigation or disciplinary meeting
  • if an allegation is put to an employee, generally they should offer an explanation unless the employee is facing criminal charges.

Examples

Raise concerns at the time they arise

  • If the employer knew about an incident when it took place but did not raise anything with the employee at the time, the employer should not then discipline the employee much later (for example a year) over this incident.

Raise concerns before taking action

  • If an employee has concerns that the employer’s practices are requiring them to breach a professional code of ethical standards, which is a necessary part of their role, they should raise these concerns with the employer rather than remaining silent. They cannot remain silent and then later resign, claiming they were constructively dismissed.

Respond to concerns

  • If an employee raises concerns about workplace stress, the employer should respond quickly and look for a way to work through those concerns with the employee.
  • Parties should make a genuine effort to resolve any concerns raised.

Be sure to clarify any uncertainty

  • If an employee appears to ‘resign’ in the heat of the moment, the employer should not assume the employee has resigned. The employer should allow the employee to calm down and then ask what their intentions were.
  • If one party disagrees with a term in an employment agreement that is offered, they should voice this concern rather than not signing the agreement and commencing employment without raising anything. This is likely to be seen as accepting the employment agreement offered.
  • Conversely, if one party raises concerns about the meaning of the wording in an employment agreement, the other party should quickly clarify exactly what part of the agreement means.

Be responsive during an investigation or disciplinary process

  • If an employee was seen attending a sporting event while they were on sick leave, they should have an honest explanation for this.
  • Failing to comment on concerns raised by an employer and the evidence they present may be a breach of good faith. If an employee does not comment, an employer may make a decision based on the employee’s silence.
  • An employee may have a right to silence where they are facing criminal proceedings.

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