High Court says Employers and Employees can’t Trust one Another

CCCommonwealth Bank of Australia v Barker –

An interesting case arose recently in the High Court of Australia (‘HCA’) when a loyal employee took on his former employer, one of Australia’s largest banks.

Mr Barker had been employed by the Commonwealth Bank of Australia (CBA) for about 18 years in its financial services sector, which was being restructured.

On 2 March 2009, Mr Barker was told by his bosses that the bank had decided to make him redundant.  The bank was going to try and find Mr Barker another suitable position within the bank (‘the redeployment’), but failing that, he would be terminated four weeks later (‘the notice period’). … Read More

Employees going AWOL

RHGPeople change jobs for a variety of reasons, from not getting on with the boss to career advancement. Usually notice is given by the employee and they will work with their employer to train a replacement. But how should an employer react when an employee abandons their position?

Abandonment of employment arises where an employee:

  • is absent from work
  • without a reasonable excuse
  • for an unreasonable period of time
  • without having advised their employer why

The employee is, by their actions (or lack thereof), demonstrating an intention to no longer be bound by the terms of their contract of employment.

Abandonment of employment is a repudiation of the employment contract, however the contract isn’t terminated until the abandonment is accepted by the employer.… Read More

“Is the Christmas Party a Workplace?”

TRWith the temperatures rising, and Christmas just around the corner, the annual office Christmas parties are now in full swing.

For both employers and employees this presents a welcome relief from their yearly work commitments and a time in which an employer can show appreciation for the year’s hard work to their employees.

What should be remembered, however, is, put simply, the Christmas party is a ‘workplace’, regardless of when and where it is held.

Employers can be liable for the actions of their employees at work-related events, such as seminars, conferences, work functions and Christmas parties.

In the spirit of the season, Everingham Solomons now presents a ‘do’s and don’ts’ for both employees and employers for office Christmas parties.… Read More

Workers Entitled to Accrue Annual Leave

MKG-newAs a result of a decision by the Federal Court of NSW on 11 November 2014, workers in NSW are entitled to accrue annual leave whilst they are receiving weekly payments of compensation.

The case, NSW Nursing & Midwives Associations v Anglican Care [2014] FCCA 2580, involved a lady by the name of Ms Copas, who was receiving weekly payments of compensation as a result of a workplace injury for a number of years.

The question the Court had to answer was whether Ms Copas was entitled to accrue annual leave whilst she was not working and receiving weekly payments of compensation. … Read More

What is in your “too hard” or “rainy day” basket?

KXBbwWe often have a business client or an individual come to see us with one or more mystery notices from the Australian Taxation Office, their bank or their creditors.  The notices contain lots of small print, intimidating language and tight deadlines for action.  Too often, days or even weeks have passed before we see the notices because they have been sent to the client’s accountant initially, which ís commonly the registered office for the company behind the business, or the client’s tax agent.  Or, quite frequently as well, the notices have arrived and been put straight in the client’s “too hard” or “rainy day” basket.… Read More

Why Workplace Matters?

KXBbwIn our practice, we find that our business clients are increasingly focused on workplace matters – how they can effectively recruit, retain, train, manage and support their employees, while also keeping their employees healthy, safe, happy and productive.  There can be many twists and turns, successes and mistakes in an employer’s journey with its workforce.  There can also be some very difficult times – when an employee is injured or dies, suffers from a mental health issue, redundancies and dismissals, legal action around unfair dismissal and so on.

It is for all these “Workplace Matters” that we say “Workplace Matters”! Or at least it should for our region’s many employers.… Read More

Superannuation Insurance Policies

MKG-newAttached to a lot of superannuation funds are insurance policies that will entitle the policyholder to a payment should they become unable to work.

Generally speaking there are either income protection policies or total & permanent disability policies.  An income protection policy entitles a person to an income whilst they are unable to work because of illness or injury.  There is usually a preclusion period and the payment will go for a finite period.

Also attached are total & permanent disability policies which provide for a lump sum to the ill policyholder.  Whether or not you are totally and permanently disabled will depend firstly on the illness and secondly on the definition of ‘total & permanent disability’. … Read More

What constitutes a workplace?

TRA recent decision in the Federal Court has broadened the definition of “workplace” under the Sexual Discrimination Act 1984 (Cth).

The case of Ewin v. Vergara involved co-workers in a Melbourne accounting firm. Ms Ewin and Mr Vergara initially struck up a friendship, working on joint matters and going jogging together at lunchtime.

The relationship deteriorated however when Mr Vergara attempted to take the friendship to the next level. Ms Ewin was married and rejected Mr Vergara’s attempts to establish a relationship.

The Sexual Discrimination Act prohibits sexual harassment in a workplace, which is defined as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”.… Read More

Are Post Employment Restraints Enforceable?

TRIt is not uncommon for an employer to place a restraint upon a departing employee which typically prevents the departing employee from being involved in a similar enterprise, contacting the past employer’s customers, utilising the employer’s confidential information and not poaching the employer’s employees.

In brief the law is that an employer must have a “legitimate interest” to protect and the reach of the post employment restraint must go no further than is reasonably necessary to protect that interest.

The Courts start from the premise that restraints are void, due to public policy. That is because a person should have the right to practice in his/her chosen occupation trade or profession.… Read More

Gifts should have ribbons, not strings …

KXBbwKeiran Breckenridge, our Special Counsel, reports on a recent case industrial/employment law case.

Two unrelated companies gave certain employees $300 gift cards for working through a union strike.  But their gifts came back to bite.

The union took the companies to the Federal Court and argued that the failure to give gift cards to the striking employees amounted to the companies injuring the employees who went on strike and/or discriminating between employees based on who went on strike or not, all for simply exercising their workplace rights.  The union claimed that the companies breached s.340 of the Fair Work Act 2009, which prohibits the taking of ‘adverse action’ against an employee because he or she has exercised a workplace right.… Read More