Here's the recent articles submitted by mki legal
Articles By mki legal
Unfair Dismissal Wa Says: Failing To Report Use Of Prescription Drugs Is Not Serious Misconduct
Submitted as: Martin Crow
A company that manages transportation services had a policy requiring its employees to disclose information about prescription drugs they were taking. The company hired a compliance officer to administer drug and alcohol tests on its employees that drove or operated public transportation vehicles.(read
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View : 728 Times
Category : Legal
Unfair Dismissal And Drug Use By Employees
Submitted as: Nicholas Marouchak
Employers take a hard line on dismissing employees for drug use during work hours. Although it is recommended that employers have in place and follow zero drug use policies in order to prevent unfair dismissal claims, the Fair Work Commission has upheld terminations of employment even where no such policies existed, and even where employees have been denied procedural fairness.(read
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View : 473 Times
Category : Legal
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
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View : 493 Times
Category : Legal
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
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View : 468 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 : 442 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
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View : 457 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
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View : 478 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
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View : 453 Times
Category : Legal
The Advantages Of Lodging A General Protections Claim – A Guide By Adverse Action Lawyers, Perth
Submitted as: Nicholas Marouchak
If an employee has had their employment terminated, an employee can commence various claims arising from the dismissal, including a general protections claim (also known as an adverse action claim), an unfair dismissal claim, or a discrimination claim.
This article explores the advantages of commencing a general protections claim over an unfair dismissal claim.
Section 725 of the Fair Work Act 2009 specifies that a person must not commence, among other things, a general protections claim and an unfair dismissal claim at the same time. This forces a dismissed employee to choose one or the other.
We often advise dismissed employees who have the option of making both claims. If you are faced with the choice of commencing both an unfair dismissal claim and general protections claim, which one do you choose?Generally speaking, it is more advantageous to commence a general protections claim for the reasons mentioned below.
No Compensation Cap
A general protections claim does not have a limit on the amount of money that a person can receive if successful in their claim.
While an unfair dismissal claim does have a maximum compensation cap of six months' salary or wages, provided the amount is no more than 50% of the high-income threshold (which from1 July 2016 is $138,900); therefore the maximum compensation in unfair dismissal claims is $69,450.
Generally, the losses that an employee suffers arising from dismissal include lost income during periods of unemployment, lost income arising from missing out on future promotion opportunities, and losses arising from accepting an alternative lower-paying position found after dismissal. Under the unfair dismissal system, a dismissed employee often misses out on recovering all these losses.
Under the general protections system, a dismissed employee can recover their entire lost income losses without it generally being reduced. Statistically, damages for general protections claims are higher than for unfair dismissal claims.
No Onerous Prerequisites
Unfair dismissal laws have certain qualifying provisions which must occur before the dismissed employee has a right to lodge an unfair dismissal claim.
The first such prerequisite includes a minimum period of service, which is either six months or 12 months, depending on how many employees a business has.
The second prerequisite is that the employee cannot earn more than the high-income threshold(which from 1 July 2016 is $138,900) unless the employeeis covered by modern award or enterprise bargaining agreement.
Thirdly, independent contractors do not have the right to lodge an unfair dismissal claim, whereas independent contractors do have the right to lodge a general protections complaint.
Fourthly, casual employees do not have the right to lodge an unfair dismissal claim unless they worked on a regular and systematic basis,whereas casual employees do have the right to lodgea general protections claim, irrespective of whether they worked on a regular and systematic basis or not.
The above restrictions do not apply to general protections complaints and, therefore, the general protections system is open to more people than the unfair dismissal system.
You Can Recover Penalties
Under the unfair dismissal system, a successful employee is only entitled to compensation at the above capped amount, and also to reinstatement in limited circumstances.
Under the general protections provisions, a successful litigant is entitled to compensation as well as the ability to have civil penalties imposed against the business. A civil penalty is a further payment that the business is required to pay as a penalty for their breach of the general protections laws.
The current maximum penalties are $54,000 for corporationsand$10,800 for individuals. This penaltiesapply for each breach.
This penalty is usually paid to the person who succeeds in the claim. There are no such penalties available in the unfair dismissal system.
You Can Claim Damages for Distress, Anxiety and Depression
Under the unfair dismissal system, a successful litigant cannot recover compensation for their hurt feelings, anxiety, humiliation, or depression which arose from the dismissal. Under the general protections system, a successful litigant can recover these types of damages.
We often see employees experiencing anxiety, depression, and stress because of the manner in which they were dismissed.
The Reversal of the Onus of Proof
Under the unfair dismissal laws, an employee has the responsibility of proving their case. The employee has the ‘burden of the proof'.
Under the general protections laws, provided the person commencing the claim raises some preliminaryfacts to support their claim, the business has the burden of proving that they did not breach the general protections laws. Therefore, the responsibility of proving the case rests on the business and not on the person commencing the claim. This is an advantage in litigation because if the business is not able to discharge their burden of proof, the person commencing the claim will be successful.
Please contact our general protections claims lawyers if you have any questions about this article.(read
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View : 499 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
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View : 482 Times
Category : Service
