Domestic Violence Leave for Workers – Employers Take Note – George Hoddle

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GRHRecently the Fair Work Commission during its four-yearly review of Modern Awards has ruled on Domestic Violence Leave.

In response to the submissions of Unions and the demands of the general public on the issue, the Fair Work Commission has sought to protect workers, noting “family and domestic violence is a community issue and requires a community response.”

The Fair Work Commission has released the final domestic violence leave model which will be inserted into all modern awards which will see Domestic Violence Leave being made available to workers from 1 August 2018.

The key elements of the incoming domestic violence leave are as follows;

  • The Leave will be unpaid;
  • The entitlement is up to 5 days leave annually;
  • It will apply to all employees including full time casuals and part-time employees;
  • The leave will not accumulate from year to year but will be available in full at beginning of each 12 month period;

The new provision will protect employees from any adverse action an employer may take against an employee for taking time off in accordance with the Domestic Violence Leave regime.

The change to the modern awards is significant and will require employers to review and update their policies and procedures.

Everingham Solomons has the specialist skills to be able to assist in the implementation of new or the updating of existing policies in respect to Domestic Violence Leave and other workplace policies because at Everingham Solomons, Helping You is Our Business.

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The Christmas Break – George Hoddle

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GRHThe heat has arrived in the North West and the countdown to Christmas is here. This is an opportunity for employers to review how their business deals with one of the biggest liabilities that sits on their books. It is of course annual leave.

The January period in the region for many industries and sectors is often the quietest month which in turn may or may not require a fully staffed workplace.

Under the National Employment Standards (NES) workers in full time employment are guaranteed a minimum four weeks annual leave per year or for some shift workers 5 weeks. If those minimum weeks of annual leave are not taken during the calendar year the residual leave not taken accumulates. If this is multiplied over a number of years a significant liability owed to employees can leave a business exposed.

A practical way to reduce this liability is to direct or require employees to take their annual leave over the Christmas/New Year shutdown. Approximately 28% of Australian workers are ‘forced’ to take annual leave each year.

Whether or not an employer can require an employee to take annual leave depends on the terms of applicable modern award (noting that there are 83 modern awards) and or the terms of their employment contract.

An employee should be given eight weeks written notice but no more than 12 months’ notice of forced leave. In circumstances where leave is required the leave must be at least one week. Employees cannot use personal leave as annual leave as these are two separate entitlements and under the NES cannot be traded off.

Another option to reduce liabilities is for employees to “cash out” their annual leave. An employer can’t pressure employees to do so and if agreed the agreement must be in writing. Any payment must be made at the same rate as if the employee was taking leave.

The potential exposure of accumulated annual leave highlights the need for correctly drafted employment contracts. At Everingham Solomons we have the expertise to advise you on the terms of modern awards and the drafting of employment contracts.

The team at Everingham Solomons wishes everyone a safe and Merry Christmas and we look forward to helping you in 2018 because, Helping You is Our Business.

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Claims by adult children in contested Wills – George Hoddle

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GRHAs a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.

There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.

This is particularly true when a Court looks at the conduct of the adult children towards the deceased when assessing what weight to give to the deceased’s intention to deliberately leave adult children out of their will.

The starting point of the Act is that the freedom of the person making the Will is the foundation principle and that consideration and proper respect must therefore be afforded to a capable testator’s judgement. A Court cannot simply “ride roughshod over the testator’s intention.”

There is no rule or principle that the deceased has an obligation to make provision for an adult child. Neither is a testator required to look after a child for the rest of the child’s life into retirement.

In circumstances where there is evidence that the child has been callous, hostile or indifferent towards the deceased the Court will not look favourably on the clear intentions of the deceased in favour of adult children.

In cases of small Estates, where there is a surviving widow, it is sometimes deemed appropriate that no provision be left for the adult children at all.

An adult child cannot presume to have an automatic right to a share of the estate of a parent. Nor does an adult child have an automatic right to parity as between his and her siblings, as was found in the recent case of Revell v Revell.

At Everingham Solomons, we have the expertise to assist you with respect to such claims, because Helping You is Our Business.

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Pro Rata Long Service – George Hoddle

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GRHUpon the continuous service of 10 years a worker in most circumstances is able to qualify for long service leave. It is worth noting however, that in certain situations an employee may be able to qualify for long service leave on a pro rata basis before the expiry of obtaining 10 years continued service.

The Long Service Leave Act provides that an employer must pay an employee (with more than five years but less than 10 years’ service) their pro rata long service leave entitlements where the employee resigns from their employment “on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker.”

To be able to satisfy a claim for pro rata long service leave a worker must be able to satisfy the following;

  1. Was the reason claimed for termination one which fell within the section?
  2. Was the reason generally held by the worker not simply colourable or a rationalisation?
  3. Although the reason claimed may not be the sole ground which led the worker in his decision to terminate, was it the real and motivating reason?
  4. Was the reason such that a reasonable person in the circumstances in which the worker found himself/herself placed might have felt compelled to terminate his employment?

When considering whether or not an employee is entitled to a pro rata long service leave after five years will be fact-specific. For example the Supreme Court has recognised that uncertainty regarding the future of one’s employment and the need for security of employment both for an employee’s professional reasons, and to support their family, is a circumstance which can be taken into account when determining whether or not an employee resigned on account of “pressing necessity”.

Whilst less than 10 years, pro rata long service leave entitlements can be significant. Whether you’re an employee or an employer it is worth considering whether or not the circumstances give rise to a payment or claim for pro rata long service leave. At Everingham Solomon’s we can provide you that advice, because Helping You is Our Business.

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Family Provision Claims – Keeping the Farm Together – George Hoddle

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GRHRecent decisions in the Supreme Court have reinforced the Courts preference for keeping family operated farms together in certain situations in circumstances where a Will is contested.

A recent case involving a grazing property near Wagga Wagga upheld the deceased’s wishes to keep together a farming operation that had been left to the son at the exclusion of a claim made by a city-based daughter of the deceased. Whilst the daughter had been able to establish need she was ultimately unsuccessful.

When determining need “the court also considers the nature, extent and character of the estate.” The character of the estate in an example of a rural estate with its major asset a working farm is a significant factor that a court will consider.

When considering Provision Claims the Court will assess the needs both present and future of a person of whom makes an application for Family Provision. In the context of rural estates the term “Need” is very much an ambulatory concept.

A deceased testamentary intention to keep a farm together as an integrated economic unit, managed and run by a beneficiary of their choosing is something that a court gives significant weighting to.

Arguments about fairness between children of the deceased can be overtaken by a clearly expressed intention of the deceased. The position of the Supreme Court is that it has no mandate to simply “ride roughshod over the testator’s intentions”

When considering breaking up a rural estate a Court will look to whether or not the viability of the farm is dependent upon it operating as an integrated whole and if the deceased’s intention to keep the farm together was made clear.

The recent decisions of the Supreme Court only stand to emphasise the need to have a clearly defined succession plan in place. At Everingham Solomons we can assist with such planning because Helping You is Our Business.

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Twas the night before the Christmas Party… – George Hoddle

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GRHThe Mercury has risen, Paul Kelly is making gravy, Christmas is just around the corner and the Christmas parties are now in full swing.

Christmas parties for employers and employees provide a welcome relief from the day-to-day stress of being in business. It is an opportunity for employers to show their appreciation for the year’s hard work to their employees.

Both employers and employees should be wary however, that a Christmas party even if it is outside of office hours and at a different venue than the normal workplace is still defined as “in the course of employment”.

A recent decision in the Fair Work Commission saw an employee whilst behaving in an otherwise inappropriate and offensive way, did not constitute grounds for dismissal. The Member in that decision noted several reasons, the most notably being that the employer allowed unlimited alcohol consumption. In this case it was found that it was “entirely predictable that some individuals will consume an excessive amount and behave inappropriately”. One of the basis of this decision was it was contradictory for an employer to supply endless alcohol and then dismiss an employee as a result of behaviour affected by the endless supply of alcohol.

Employers can be liable for actions of their employees at work related events these include Christmas parties.

It is however, important to remember that Christmas parties are a time to enjoy your colleagues’ company in a more relaxed environment. In the spirit of the season Everingham Solomons provides a Do’s and Don’ts for both Employees and Employers for the Office Christmas Party Season;

Do’s

  • Turn up! Get to know your colleagues outside the office environment.
  • Choose your karaoke song wisely;
  • As alcohol will normally be served at office events, employers should organise travel arrangements, such as a taxi or courtesy bus to ensure their employees get home safely.
  • Ensure your staff are reminded that a Christmas party is a workplace event and the expectation is that behaviour will reflect this. A timely reminder to staff of any existing office policies and procedures, particularly in relation to sexual harassment and bullying would also be relevant.
  • Monitor your own behaviour this includes alcohol consumption
  • Enjoy yourself!

Don’ts

  • For employers if you receive a complaint post the Christmas party, take it seriously and investigate it as you would any other office incident.
  • Do not do something you know you would not be allowed to do in the office. Remember policies of your workplace apply.
  • Remember, the Christmas party is not the time to campaign for a pay rise!
  • Employees and employers should refrain from posting photos of the Christmas party and social media to avoid embarrassing pictures of themselves and colleagues entering the Twittersphere

The simple message for all is to enjoy yourselves in a responsible manner. Everingham Solomons wishes everyone a safe and Merry Christmas please don’t drink and drive. Helping You is Our Business.

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Can employers become responsible for the criminal acts of their employees? – George Hoddle

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GRHThrough the employment of staff an employer has exposure for the actions of an employee that bind the employer. This long established legal principle is referred to as Vicarious Liability.

Vicarious Liability is a liability imposed on one person for the wrongful act of another on the basis of a legal relationship existing between them. This extends to an employer being liable for the wrongful act of an employee.

An employer has long been found to be liable for the harmful acts of an employee if they are done within the course of their employment. A simple example of this would be an employers liability to pay damages in circumstances where an employee in the course of their employment has negligently caused harm to another person.

A recent High Court decision has explored the possibility that an employer could also be held responsible for the actions of an employee when they have gone beyond their normal course of employment and have engaged in intentional and criminal acts.

The recent High Court decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 dealt with a horrific systematic sexual abuse of school children performed by an employed master of a boarding school.

Whilst the victim did not succeed ultimately due to limitation issues, the High Court’s decision has opened the door for liability of employers for the criminal acts of employees in certain circumstances.

In the Prince Alfred College case the High Court looked at the role the employee was appointed to, the special position he was placed in with respect to the victim and the high level of authority, power, trust and control that was delegated to the employee. This combined with the vulnerable position of the victim, presented a factual scenario whereby the occasion for wrongful conduct was as a result of the employee’s role.

Whilst this is not an absolute rule in respect of the criminal acts binding an employee it does present an indication for employers in scenarios whereby they have highly dependent and vulnerable people under their care, such as schools, hospitals, aged care facilities, disability providers and alike.

Employers need to ensure that they have proper systems and polices in place to maintain supervision of staff and ensure transparent reporting systems.

At Everingham Solomon’s we have the skills and expertise to assist you with your employment needs because Helping You is Our Business.

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Restraint of Trade – George Hoddle

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GRHOften, after the separation of employment both employees and employers are concerned about whether or not restraints will apply to the former employee as part of their post-employment obligations to their former employer.

In New South Wales a restraint is valid to the extent to which it is not against public policy bearing in mind an employer is not entitled to be protected against mere competition but is protecting its legitimate interests by enforcing the restraints. Such interests may include employer’s trade secrets, confidential information, the employer’s goodwill, including its connections with its customers.

It is also worth noting that there are statutory obligations under the Corporations Act that an employee cannot use information obtained to gain advantage for themselves or for someone else which may cause detriment to a corporation.

A Court when determining a restraint period, gives considerable weight towards enforceability when the parties have entered into a restraint agreement. Such a restraint agreement can be properly documented in an employment contract.

There are also recognised obligations of loyalty that an employee owes to an employer that do not cease on the termination of employment.

Restraints are important to ensure that the interests of the employer are protected. A clearly defined restraint agreement sets out both the geographic area as well as the time that the parties agree is reasonable to protect the employer’s commercial interests.

The enforceability of the length and area of restraints are unique to a particular business and take into account the background of the separation of employment. For example, for a Court a relevant fact when considering a restraint would be if the employee was made redundant as it goes to the reasonableness of the restraints in the circumstances.

It is important for employers to protect their commercial interests including but not limited to, any intellectual property that is created by staff during their time of employment.

A clearly defined restraint provisions within an employment contract shows the intention of the parties and goes towards securing an employer’s position.

At Everingham Solomons Solicitors we have the expertise to provide advice in relation to drafting employment contracts focusing on restraints placed upon employees to protect the employer’s rights because Helping You is Our Business.

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Consider Fixed Employment Term Contracts – George Hoddle

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GRHWhat is a Fixed Term Employment Contract?

Sometimes it suits employers to hire people for short, fixed periods of time. For example, there may be a specific project with a defined period that requires specialised staff.

A fixed-term contract is an employment agreement which will continue until an agreed date. The term is fixed and it is clearly defined as having a start date and a finish date inserted into the employment contract.

The benefits for an employer of a fixed-term contract is that the employer can conclude the employment relationship upon the expiry date without the need to give reason for termination. An employer that has employees on fixed-term contracts can just elect not to renew the contract.

In this scenario the employee upon reaching the expiry date and not having been offered a renewal is prevented from bringing an unfair dismissal claim or seeking other entitlements such as a notice period.

Issues arise in the event that an employer seeks to bring an early conclusion to the employment contract before the agreed expiry date. In these circumstances, the employer may need to payout the remaining term of the fixed-term contract which might be significant.

Naturally, fixed-term contracts must be genuine in the eyes of the law. An employee who is continually placed on rolling fixed-term contracts may be able to argue that they have had a reasonable continuing expectation that their employment was on an ongoing basis.  In this scenario, upon the expiry of the fixed-term contract the employee would be able to bring a claim for unfair dismissal.

If an employer is considering retaining staff on a fixed term contract, it should do so only if there is a genuine expectation that the staff will only be required for a fixed period of time.

Problems can arise in respect of fixed-term employment contracts when employers fail to include termination clauses within the contract. In this scenario, an employer may be stuck with the employee for the fixed term without an ability to terminate the employee within the fixed term.

If an employer has identified a need for an employee for a fixed period of time, they should ensure that their fixed-term contract considers the following:

  • Appropriately drafted termination clause that allows the employer to dismiss an employee for misconduct or poor performance before the expiry of the term;
  • Where possible, limiting the term of the fixed term contract;
  • Making it clear that no notice need to be given to the employee on the expiry of the term of the contract, and their employment will end at that time and their contract will not be renewed.

If you are considering taking on staff for a fixed period of time to meet the needs of your business, Everingham Solomons can assist with drafting the appropriate fixed-term contracts needed, because Helping You is Our Business.

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Left Out of a Will?

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GRHThe starting position in respect of a person’s last Will is that the Will Maker is entitled to dispose of his or her property entirely as he or she thinks fit.

Australia has various state legislations which erode the principle of complete testamentary freedom and permits Courts to redistribute a deceased estate under Family Provision Laws which can be contrary to a person’s Will.

An application must be brought within 12 months of the date of death, unless sufficient cause is shown to satisfy the Court then an application can be brought outside of time.

In NSW an application must be made by someone as defined under the Succession Act. There are six categories of relationship with a deceased that can make a person eligible to bring a claim.  These categories are:

  1. A husband or wife of the deceased;
  2. A person in a de facto relationship with the deceased;
  3. A child of the deceased (including natural and adopted children);
  4. A former wife or husband of the deceased;
  5. A person who is dependent of the deceased and who was a grandchild or a member of the deceased household; and
  6. A person with whom the deceased was living in a close personal relationship at the time of death.

It is worth noting that family members such as brothers, sisters and parents are not included in these categories.

If someone makes an application within 12 months and is an eligible person, two questions must be then asked by the Court

  1. “Has the Applicant been left with adequate provision for his or her proper maintenance, education and advancement in life?” and if not
  2. “What provision ought to be made out of the estate of the deceased in favour of the Applicant?”

Certain conduct on behalf of an eligible person can give weight to the deceased’s intention to deliberately leave them out of the Will. This was considered recently by the Court.

“… in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility”.

If a person wishes to make a claim they must do so within 12 months of the deceased passing. Claims of this nature are highly stressful as people are still in a period of mourning and are often in dispute with family members such as siblings. It is important for a solicitor to be sensitive to this and avoid legal proceedings if possible.

At Everingham Solomons, we can assist with advising your rights in relation to such claims, because Helping You is Our Business.

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