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Here's the recent articles submitted by mki legal

Articles By mki legal

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A Case Of Where An Employee Has An Adverse Action Claims    Submitted as: Nicholas Marouchak
MKI Legal recently acted for a client called John (not his real name). Due to confidentiality reasons we cannot disclose his real name. John had a good case to make a General Protections application to the Fair Work Commission (resulting from adverse action). He was a part owner in a Panel and Paint business and worked in the business as a Panel Beater and Spray Painter.(read entire article)
View : 98 Times
Category : Legal

Clinic Needed Better Unfair Dismissal Lawyers, Lost Two Cases In The Fwc    Submitted as: Nicholas
An abortion clinic was found to have unfairly dismissed two of its employees, a mother and daughter duo, after failing to properly investigate allegations of fraudulent recording(read entire article)
View : 89 Times
Category : Service

Consult An Employment Lawyer For Issues Regarding Flexible Work hours    Submitted as: Nicholas
Two brothers worked as painters for a hospital. For eight years, they enjoyed a flexible work arrangement where they reported for work from 6:30 am until 2:30 pm.(read entire article)
View : 93 Times
Category : Legal

Employment Lawyers Perth    Submitted as: Nicholas
MKI Legal, is a specialist employment law firm operating in Perth, Western Australia. We have a broad scope of legal experience and expertise in unfair dismissal, discrimination, sexual harassment, bullying, redundancy, and all other workplace issues and disputes.(read entire article)
View : 103 Times
Category : Legal

Employment Legal Advice: Fwc Rules No Redundancy Exists If Due Only To Salary Cut    Submitted as: Nicholas
The Fair Work Commission reviewed Section 389 of the Fair Work Act, which defined what a genuine redundancy is. Deputy President Bull stated that a genuine(read entire article)
View : 73 Times
Category : Service

Extension Of Time Granted For Filing In The Wrong Jurisdiction    Submitted as: Nicholas Marouchak
On 10 October 2016, Mr Pritchard was terminated by his former employer, and on 24 November 2016, he made an application with the Fair Work Commission for unfair dismissal in accordance to section 394 of the Fair Work Act.(read entire article)
View : 148 Times
Category : Legal

Federal Court Awards Hospital Worker Long-overdue Overtime Payments Withinterest By Employment Law E    Submitted as: Nicholas Marouchak
In Polan v Goulburn Valley Health (No 2) [2017] FCA 30, the Federal Court awarded a hospital worker $27,869.28 in unpaid overtime, plus interest.(read entire article)
View : 97 Times
Category : Legal

Labour- Hire Arrangements. Who Is The True Employer Of Labour-hire Workers – From The Perspective Of    Submitted as: Nicholas Marouchak
Labour-hire refers to the process by which businesses employ workers in order toprovide a service to other businesses by assigning those workers to perform work for those businesses (the host business).The host business pays the labour-hirebusiness a fee for providing its employees to work for them.(read entire article)
View : 108 Times
Category : Legal

Navigating The Laws On Unfair Dismissal    Submitted as: Nicholas Marouchak
The laws on unfair dismissal can be complicated and difficult to navigate. The purpose of this article is to provide some information to help the readers navigate this often complicated system. No Double Applications When an employee is terminated, they have the right to lodge many different types of applications, including an unfair dismissal application, general protections application, and even a discrimination application in the Human Rights Commission. Sections 725 and 734 of the Fair Work Act 2009 specify that an employee can only make one such application if they are dismissed. If an employee makes two applications, then only one will be permitted to remain active and the others will be dismissed because it contravenes this rule. The policy consideration behind this rule is to minimise the number of claims that the Commission and the courts hear regarding issues involving termination of employment. This rule forces an employee to make a decision on which application they are to commence. Sometimes this decision is difficult, because an employee may, for example, have the right to file both an unfair dismissal claim anda general protections claim. Cost Orders The unfair dismissal laws specify that, generally, a party to an unfair dismissal application will have to carry their own legal costs. In most instances, this will be the case. However, there are some exceptions to this general rule which anyone commencing such an application should be aware of. The Fair Work Act 2009 is the primary legislation which governs the law on unfair dismissal. Sections 400A and 611 of the Act sets out the circumstances in which legal costs can be ordered to be paid by one of the parties to the proceedings. These sectionsspecify that the Commission can order a party to pay the costs incurred by the other party if such costs arose because of an “unreasonable act or omission” in connection with the unfair dismissal application. What counts as an unreasonable act may include things such as rejecting a reasonable settlement offer in circumstances where the offer is close to or equal to what a party may obtain if they are successful at trial. In unfair dismissal claims, an employee is entitled to a maximum of six months' wages or salary, or 50% of the annual high-income threshold, less allowable deductions such as payments made in lieu of notice to the employee. For example, if the employee is offered six months' salary less the four weeks' notice which was paid to the employee in lieu upon termination, this would represent a very generous offer. This would represent the maximum the employee would be entitled to if the employee were successful at the hearing. Therefore, if the employee rejects such an offer, it is likely that the employee would need to pay the employer's legal costs because a rejection of this offer would clearly fall within the meaning of unreasonable act as specified in the legislation. Alternatively, if an employee has lodges claim that would be unlikely to succeed at trial and the employee rejects a reasonable offer made by the employer, then if it can be shown that the employee's case had no reasonable prospect of success at the time that the offer was rejected, then that would also amount to an unreasonable act which will entitle the employer to obtain legal costs if the matter proceeded to hearing. Costs can also be obtained against a party if they commence legal proceedings which have no basis and are doomed to fail. The decision on whether or not a case has no reasonable prospect of success must be determined objectively at the time of filing the proceedings. The law specifies that such a conclusion should only be reached with extreme caution. Reaching such a finding is generally difficult in practice. A common example where such a finding would be made would be if the employee and the employer reached a settlement agreement under which the employee agreed to release the employer from all claims, including the unfair dismissal claim. If the employee continues with the unfair dismissal claim, then the employee would be running a case that has no reasonable prospect of success (because of the settlement agreement). In this situation, the employee is at risk of having costs ordered against them.(read entire article)
View : 115 Times
Category : Legal

Some Tips When Dismissing An Employee From A Termination Of Employment Lawyer    Submitted as: Nicholas Marouchak
In Australia, if an employee is terminated unlawfully, then the business can be exposed to various types of claims including unfair dismissal, general protections, or discrimination claims. Therefore, it is important to make sure that the procedures are followed correctly when dismissing an employee. Valid Reason An employer must have a valid reason to dismiss an employee. An employee should be notified of the reason for their dismissal before their employment is terminated. It is best practice to either sit down with the employee and advise the employee of the reason, or send written correspondence to the employee setting out the reasons before the dismissal occurs. An often relied on reason for termination is redundancy. Redundancy occurs when the employee's position is no longer required to be performed by anyone. Redundancy is about removing the position and not about removing the employee. The business must also ensure that the redundancy is a genuine redundancy and not a sham redundancy. The business must also ensure that they consult with the employee beforehand and also look for alternative work that the employee may be suited to perform before terminating the employee for redundancy. Another reason is dismissal for poor performance. Before an employee is dismissed for this reason, an employee must be given a reasonable opportunity to improve. This often means that the employee should be put on a performance improvement plan, and the employee must be advised on what they are doing wrong and how to improve it. A business should not act with too much haste in terminating an employee who is performing poorly. However, if the employee has been with the business for less than six months, then the employee is not covered by unfair dismissal laws, and their employment can be terminated without giving the employee a proper opportunity to improve. This often is applicable in cases where the employee is on probation. However, if the business is relying on this type of dismissal, it is important to ensure that this dismissal only relates to performance and it does not relate to any other issue which may be unlawful. For example, it is unlawful to terminate an employee because they have made a complaint regarding their employment (which is known as exercising your workplace right). Another common reason for termination is misconduct. Misconduct can take various forms and can be further classified into serious misconduct or regular misconduct. Serious misconduct is usually an act that is done intentionally, and is often more than just a mere error of judgment. It is misconduct of such a serious nature that it would be unreasonable to continue the employment relationship. Serious misconduct includes things such as stealing from the employer, swearing at the employer, or assaulting the staff. Regular misconduct includes other wrongdoing by the employee. Serious misconduct allows the employee to be terminated without notice. In the case of regular misconduct, the employee must be given notice before they are terminated. Opportunity to Respond The employee must be given an opportunity to respond before they are dismissed. This is usually done by having a meeting with the employee and giving all the proposed reasons the business intends to rely on to terminate their employment. In other words, give the employee an opportunity to have their say. This can be done at a meeting, or alternatively, this can be done after the meeting, where the employee puts in a written response addressing the proposed reasons. The business should not make the definitive decision to terminate the employee before they have given the employee a chance to respond. Document Everything It is important that the business documents everything. The reason for this is that if the matter proceeds to a hearing, then it can be difficult to establish what was said if it is not in writing. After each important meeting, it is good practice to send a summary of what occurred at that meeting to the employee. Support Person If the employee requests a support person, then the business must allow that support person to be present at the meeting. It should also be noted that the support person is not an advocate of the employee but simply attends for moral support. The support person is not authorised to speak on the employee's behalf.(read entire article)
View : 102 Times
Category : Legal

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