Pro Rata Long Service – George Hoddle

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

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

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

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

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

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?

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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You can’t leave your responsibilities at the office

GRHIn a recent case in the Fair Work Commission, an employee who behaved drunkenly and inappropriately at a work Christmas party won an unfair dismissal case against his employer. The message for employers is that your duties are not necessarily limited to the office; so be careful this season in supplying unlimited alcohol to your staff, or face the consequences.

Mr. Keenan was an employee at Leighton Boral when he attended a Christmas party for the firm in December of 2014. At the party, Keenan’s employer supplied unlimited alcohol for employees without supervision.  As a result of becoming highly intoxicated at the function, Keenan acted inappropriately, swearing at his boss and repeatedly harassing a female colleague for her phone number. Keenan and several other colleagues then proceeded upstairs to a public bar, where he allegedly sexually harassed a female colleague and bullied other colleagues.

As a result of Keenan’s behaviour, he was dismissed following the function. Keenan then proceeded to make an application for unfair dismissal to the Fair Work Commission.

Keenan’s worst behaviour occurred after the Christmas party in the upstairs public bar. However as this was not in an employment setting, for Keenan’s behavior in the public bar to constitute grounds for dismissal it needed to be proved that it impacted the capacity of fellow employees at work.  In this case it did not, as his colleagues were unconcerned by his behaviour.

The work party, on the other hand, was sufficiently “in the course of employment”, as Keenan attended due to an invitation by his employer. However the Vice-President of the Commission found that Keenan’s behaviour did not constitute grounds for a dismissal.  This was due to several reasons, the most notable being that Keenan’s employer allowed unlimited alcohol consumption.  The Vice-President found that it was “entirely predictable that some individuals will consume an excessive amount and behave inappropriately”.  It was contradictory for Leighton Boral to supply endless alcohol and then dismiss Keenan as a result of his behaviour.

With the approaching office silly season, employers should be aware that a broader duty is owed to employees that does not end when they leave the office at 5pm.  Where there is alcohol supplied at work functions, employers should provide supervision to limit intoxication, and ensure that employees get home safely.

At Everingham Solomons we have the experience and expertise to assist and advise on you or your company’s work place legal needs, because Helping You is Our Business.

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Is bullying occurring in your workplace?

Is bullying occurring in your workplace?

GRHSince 1 January 2014 the Fair Work Commission has had powers to make orders to prevent workplace bullying.

Workers who believe they are being bullied can apply to the Fair Work Commission for assistance.

A worker is deemed to have been bullied, while at work if:

  1. An individual or group of individuals repeatedly behaves unreasonably towards another worker, or a group of workers of which the worker is a member; and
  2. That behaviour creates a risk to health and safety.

A worker is defined broadly as including employees, contractors, sub-contractors, outworkers, apprentices or trainees and work experience students. The Fair Work Act does not apply to volunteers and members of the Australian Defence Force.

Whilst the amendments to legislation is relatively new, it is worth considering that past acts of bullying can be considered by the Fair Work Commission. In an Application by Kathleen McInnes [2014] FWCFB 1440, a respondent raised a jurisdictional objection to an Application on the basis that the Fair Work Commission should only consider bullying conduct after 1 January 2014.  In this case, the Applicant had alleged that she had been bullied over a six-year period between 2007 and 2013.

The Fair Work Commission rejected the Respondent’s jurisdictional objection stating that past behaviour may be taken into account because the legislation is ‘basing future action on past events, rather than changing past rights and obligations’.

The type of Orders that the Fair Work Commission can make can include but are not limited to, ordering:

  • a person not to contact the worker alone;
  • an employer to regularly monitor workplace behaviour;
  • that certain behaviour stop;
  • that the employer provide information, support and training to workers; and
  • that the employer review its workplace bullying policy.

In this regard, orders can be made against the employer, co-workers and/or visitors to the workplace. Contravention of a Fair Work Commission order can result in a fine of up to $10,200 against the offending party.

These amendments to the Fair Work Act has significantly increased an employer’s exposure to claims in respect to bullying.

Everingham Solomons encourages businesses to be proactive in their approach to potential claims, by ensuring that their code of conduct, anti-bullying policy, risk management and investigation and claims process is relevant and up-to-date.

Everingham Solomons has the expertise to review policies and procedures regarding workplace behaviour and the complaint processes, because Helping You is Our Business.

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Enforcement of a judgement against an individual.

GRHIf you hold a judgement against an individual a Garnishee Order is an option to recover your judgment debt. This is an Order from the court that requires monies to be taken from a judgment debtor’s bank accounts, wages or from someone else who holds money on behalf of the judgment debtor.

For example a real estate agent may be collecting rent on behalf of a judgment debtor. In those circumstances a garnishee order would require the real estate agent to deduct monies held on behalf of the judgment debtor.

In the event that an institution or person that is holding money on behalf of the judgment debtor, fails to deduct money in accordance with a garnishee order then that person or institution may become liable for part or whole of the judgment.

The more information provided about the judgment debtor the more effective a creditor can be at recovery. Information such as which bank the debtor holds accounts at, who is their employer or what real estate agent they use, allows a more precise drafting of any Garnishee Order and with it better prospects of success. The filing fee for a Garnishee Order in the Local Court is $78 for an individual creditor or $156 for a company creditor.

A downfall of the Garnishee Order is if there is no monies available at the time the Order is received by the institution or individual then no monies can be deducted. Timing is important and it can sometimes come down to luck.

A Garnishee Order can be an efficient and cost effective way of recovering monies owed under a judgment. If you hold a judgment and wish to enforce it you should contact a solicitor to discuss your options.

At Everingham Solomons, our dispute resolution team is committed to providing the most time and cost efficient outcome when pursuing enforcement of judgments because Helping You is Our Business.

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