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Home | Partner providing Q & A on the 2GB Chris Smith Afternoon Show discussing issues in relation to Workplace & Employment Law 21/11/13

Thursday, 21 November 2013

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C – Chris/DT – David Taylor/C1, C2, C3, C4, C5, C6 – Callers 

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C –      Yes, Turner Freeman.  They are our sponsors of this particular segment, it’s called Legal Matters and this is where you get your free legal advice.  Which is unheard of in the field of the law and David Taylor is back in the studio today.  We’re focusing on employment, contracts at work, various employment disputes and solutions to unfair dismissal regimes etc.  131873.  David will be here and he is quite happy to take your calls.  He is in the studio right now, David good afternoon.

DT –   How are you today?

C –      I’m very very well.  Keeping one eye on your work and the other eye on the cricket hopefully.

DT –   It’s got to be done that way, it’s got to be done.

C –      It’s a pity we’ve lost 2 wickets but anyway.  We’re getting there.

DT –   It’s almost lunch.

C –      Almost.  Contracts of employment, when people have a contract of employment what is meant by that term, and is it such an advantage to have a written signed contract?

DT –   It’s probably not that much of an advantage to have a written contract, other than it provides some clarity and certainty.  A lot of people think they don’t have a contract of employment, they’ll come and they’ll say that there’s nothing in writing and therefore there’s no contract.  Pretty much everybody, and perhaps everybody who had a job has a contract of some form.

C –      So through the award you mean?

DT –   Well, an award isn’t a contract but there’ll be other bits that laYes on top of it so your starting time, your finishing time, what you do may be part of your contract.  The arrangement you come to with your emploYes is a contractual arrangement and the fact that it’s not in writing doesn’t make it any less a contract.

C –      So instantly when you become a full time employee, if there’s no contract literally to sign there are laws in place to protect you in terms of notice.

DT –   Yep, absolutely.  There’s a range of statutes, of legislation that protects you.  But you’ve also got rights and obligations that come from your relationship with your emploYes.  So you’ve got to turn up or you’ve got to perform work and they’re contractual obligations that you have and all employees have.

C –      Okay, lets go to callers, 131783, 21 minutes to 3 o’clock. Perarn go ahead David is listening.

C1 –    Oh hi David, how are you?

DT –   Not too bad Perarn how are you?

C1 –    I’m good mate, I actually had a friend that started a job, was only there for about 4 weeks and she was quite good at it, it was just in customer service, and she actually got really good at it and she actually started training people after only 4 weeks of being there and after 6 weeks they let her go saying that she didn’t look like she wanted to be there and that was the only reason they gave her.  Is that legal? Are they able to do that?

DT –   Well that is a good example of where there’s a contract and where there’s other statutory protection.  Under her contract, yes they are, there’s no general impediment under a contract of employment to sacking somebody usually, as long as you give them the period of notice.  The protection that most of us have is through the Unfair Dismissal regime which says that you can’t terminate someone’s employment in a manner that’s harsh, unjust or unreasonable, and you’d certainly say that what happened to your friend was harsh, unjust or unreasonable.  However, there’s a limitation in the Unfair Dismissal system which is that workers that don’t have 6 months service have got no right to a protection from unfair dismissal.  So in those circumstances whilst it may have been an unfair dismissal there’s no capacity to bring a claim because she’s been there for less than 6 months.

C1 –    Oh okay, so she doesn’t even need to have the 2 weeks notice, they can just dismiss her on the spot type thing.

DT –   That would be the general rule, during that 6 month period you’re on a probationary period and during a probationary period you can generally be let go with no notice.

C1 –    Okay

C –      That’s interesting, I was under the impression for some reason, tell me whether this was the case, in previous years that the probation period was understood to be 3 months, not 6 months.

DT –   It changed with the Work Choices Legislation

C –      Oh right

DT –   It was commonly understood to be 3 months although with different industries where it was longer, I worked in university for a while and they’re probationary period went up to 2 or 3 years at times.  It was fairly long.  With the Work Choices change it was commonly moved to 6 months and pretty much that’s standard practice now.

C –      You know, you made mention of contracts before and I was raising the fact that you know, some people have signed and written contracts.  Like most of us do here, I know most of the hosts do here.  It’s interesting, I was always under the impression once again that if you turned up and you wanted a loan or a mortgage from the bank that if you had a contract you could show that you were at work for a least 2 years or even 3 years depending on what your contract says, but now-a-days they don’t ask you about that.  They actually say “how long have you been working there’ and “are you working there now?’  They don’t actually worry about whether you’ll be working there next year.

DT –   No, I think that’s true.

C –      They want you to just sign up for the mortgage.

DT –   It’s a whole lot easier to get money now than it used to be.  But certainly the things they always look for are, how much are you earning, so show us your bank statement, prove to us that your earning this amount and how long you’ve been there because that tends to be the best indicator that your going to be there for a while.

C –      Interesting, which says a lot about written contract, or doesn’t say much about written contracts.  Michael go right ahead.

C2 –    Good afternoon.  I was just wondering, my wife, she’s a, I suppose you could call her a head secretary, she’s got an understudy.  They’re looking at sacking her next week and she’s gonna be made to take on the majority of the other person’s role.  What sort of rights does she have to demand getting a pay rise?

DT –   Um good question.

C2 –    Now she’s got part of the other person’s role.

DT –   Well, there are 2 ways to look at it.  The first is, her obligation is only to do 38 hours of work a week, or whatever it is that her contract provides for.  And it’s got to be about 38 hours or else it would be unlawful.  So, if they try to say “well now your going to do 2 people’s jobs and it’s gonna take you 50 hours a week and you’ve got to do it”, she’s entitled to say “no, I only have to do 38 hours a week”.  In terms of the pay rise, her entitlement to a greater, to get a pay rise is really just a negotiated power.  If she’s the only one there all of a sudden her emploYes needs her more and her ability to command a higher wage increases.  So, if where there was 2 and 1 went then the emploYes had some protection because the other one was still there.  Now that she’s the only one the emploYes all of a sudden would need to recognise that if she went they would have a real problem.  And so, that means that she’s got an ability to say “well, I think I should be paid a bit more.”  The other side to it might be that if she’s covered by an award she’s apid at award rates.  If there’s a change to her duties that might mean that she’ll be at a higher lever and that might lead to a higher pay rate.

C2 –    Fair enough.

C –      Okay Michael, there you go.  It is a very interesting question, but you don’t want to push it too far, you don’t want to start sending the lawYess in because you want to keep your job.

DT –   Absolutely, you’ve always got to play it politically and be careful that you maintain the relationships.

C –      You spoke earlier when we were discussing contracts how you really have a contract with who has employed you.  What if a business is sold and a new owner comes in.  Have you got to reinstate what the rules are?

DT –   Yes, you really do.  And there’s a couple of elements of that.  There’s certainly the cultural element, so that same thing about getting a new, asking for a pay rise applies when you get a new boss.  Because a lot of the employment relationship is not really a legal relationship, it’s an interpersonal relationship.  It’s going into the workplace, talking to the boss and actually the boss having confidence in your capacity to do the work and you enjoying being there and you enjoying the relationships.  So when you have a change of ownership, often that means a complete cultural change, it might make different systems, different expectations that might be better or worse or just different.  And it can take some time.  Legally there are real difficulties, well not difficulties but it creates complexity, sometimes the transition of business will mean that you end one employment and you start one employment and so you’d be paid out your leave and everything else and then offered a new contract.  And that might mean for example that you’d have a new probationary period.

C –      Right

DT –   And that you could be let go during that period.  Or alternatively sometimes the ways it’s done is that you stay in the one contract and it’s just the party to the contract that changes.

C –      Anne, go right ahead.

C3 –    Good afternoon guys.  A quick question, I was in a well paid position, it was just over $120,000, made redundant whilst on maternity leave.  I went to the commission and because the emploYes decided not to enter into any sort of negotiations they said no we’re not giving you anything see you in court.  How long after you’ve been to the commission, what’s the timeframe that you can elect to take it to court?

DT –   Well, the timeframes are generally to bring a claim in the Australian Human Rights Commission, that you need to commence the complaint within 12 months of the action.  And then you go through that process which it sound like what you did and a certificate is issued terminating the complaint at the end of that process.  And you then have 60 days from the issue of that certificate in order to commence proceedings.

C3 –    That’s right, the problem is.  I’ve asked for that certificate from Fair Work 5 times. I still don’t have that certificate.

DT –   Well, if it’s gone through Fair Work then you’ve only got 14 days from the issuing for the certificate.  But you don’t have anything, you can’t do anything until the certificate has been issued and you won’t run out of time.  Certainly, in your position you’d want to put things in writing to Fair Work.  So not just ring, but write to Fair Work and ask that the certificate be issued.

C3 –    Yes, okay.  And then once the certificates issued there is a 14 day period you say.

DT –   If you’ve gone through the adverse action or the general protections provisions of the Fair Work Act then you’ve got 14 days from the termination in Fair Work.

C3 –    So, until they actually issue the certificate I’m pretty alright.

DT –   Well, time isn’t running.

C3 –    Yes, that’s right, okay.  Fantastic, your a doll.

C –      Good on you Anne, glad you got your question answered the way he usually does.  David Taylor from Turner Freeman, we’re going to take a break and we’ll come back with David and your calls.  Now compensation can’t change the past, but it will         make a difference to your future.  So if you’re suffering because of someone else’s    negligence turn to Turner Freeman LawYess.  Turner Freeman LawYess are heavy hitters, the type of law firm you need on your side to win.  And they’ve been winning claims for a long time.  When a Turner Freeman LawYes acts for you they draw on over 500 years of combined experience, the financial and legal resources of a national firm and a reputation as tough, uncompromising litigators who won’t rest until you get the compensation you deserve.  So give Turner Freeman LawYess a call.  Or visit their website TurnerFreeman.com.au to find the details of your nearest office.  Turner Freeman LawYess when you need to win your case.  Our Legal Matters segment brought to you by Turner Freeman, David Taylor from Turner Freeman can take your calls right now 131873.  It’s 8 minutes away from the new at 2 o’clock.  Thomas hi.

C4 –    Hello, how are you?

C –      We’re very well, go for your life.

C4 –    What is the legality of holding 2 full time jobs at one time as long as I’m able to fulfill the responsibilities of both jobs.

C –      2 full time jobs at once?

DT –   You’d be tired I would of thought would be the first response.  A lot of contracts will contain a provision that will say that you agree that you’ll devote all your efforts to that job and that you won’t hold another job without the consent of your emploYes.  If that isn’t a term of the contract then there’s no reason why you can’t hold 2 jobs at once.

C4 –    Thank you very much

C –      Thomas, before you go, you there?  Can I ask you what hours are you considering working to take 2 full time jobs?

C4 –    Um, one in the morning and one in the afternoon.

C –      One in the morning and one in the afternoon.  So you’d start at what, 4 or 5 in the morning and finish at 8 o’clock at night.

C4 –    Um, 7:30 to 1:30 and 2:30 to about 8.

C –      Right, okay Thomas good luck.  I think your first comment was the best, your going to get awfully tired.  Mangee, go for you life.

C5 –    Hello David.

DT –   Hi, how are you?

C5 –    Fine thanks, sorry I’m a bit nervous.

DT –   That’s okay

C5 –    My daughter just got fired while being pregnant.

DT –   Had she told her emploYes that she was pregnant at the time? Did her emploYes know that she was pregnant?

C5 –    Yes, she told him but she took some time off to go to the doctors because she was feeling a bit sick, while pregnant she was having, so when she came back she called in the office and gave all the excuses but didn’t mention about the pregnancy and all that.  Saying there will be plenty of work and this and that and you have to do it and you are being a bit slack, and my daughter said “Yes no worries, I can do the job and I’ll do and bla bla bla.”  And then they went to her home while she was home sick and gave her the notice.  Took the car, the telephones and all that.

DT –   That’s.  How long had she been working there fore?

C5 –    Nearly 5 years.

DT –   On what you’ve said she may well have a claim against her emploYes.  When did this happen, recently?

C5 –    Last week Yes.

DT –   Well she would want to speak to somebody to think about bringing a claim against her emploYes, because from what you’ve said that certainly sounds like it’s unlawful.

C5 –    We thought the same, but my daughter is a bit worried because she thinks that if she does do things like that she might have a problem getting a job.

DT –   I think that’s unlikely and often one of the things that you can do in proceedings is come to an arrangement with your emploYes which means there’s an agreed way to deal, to treat the termination so it may not be that you would get your job back but everybody might agree that you resigned and that there’d be a statement as to what happened, and her reputation would be protected so actually she can do better in terms of getting another job.

C5 –    That’s exactly what my daughter did, as soon as they came there with the termination letter my daughter went and wrote a letter saying she was resigning so if ripped up the notice letter and took the resignation letter with him.

DT –   That’s still doesn’t change her right to bring a claim for a dismissal, because that’s what’s known as a constructive dismissal.  You’ve got no choice.  That is it’s still a dismissal.

C –      Maybe a call to Turner Freeman, just a suggestion Mangee might be worth doing.  You can stay online if you’d like and we can put you in the right direction.  David very quickly mate.

C6 –    Hey how are you?

C –      Very well we’ve got about 30 seconds

C6 –    They ran a random drug and alcohol test at work and I tested positive, I had to Panodals and a sleeping pill that were prescribed to me. They stood me down pending lab results which is fair enough; the boss has asked me to get a certificate which says I’m fit to drive which I’ve done.  But he has a concern that I took a sleeping pill on a one off occasion that was not prescribed for me and he’s looking at maybe dismissing me.  What rights to I have?

DT –   Gee, how long have you been there for?

C6 –    I’ve been there for a year and a half.  I’ve been permanent just over 6 months.

DT –   Okay, I think you’ve probably, on what you’ve said, if they did move to dismiss you that would be a reasonably good example of what’s likely been an unfair dismissal, on what you’ve said.  Provided there aren’t other events or other things that are going on.  So you’d want to think about unfair dismissal as a course of action.

C –      David do you want to stay online and maybe David can speak to you off air if you’d like that to occur.  That sounds a little bit rough.  David Taylor thank you for your time this afternoon.

DT –   Thank you for having me.

C –     Terrific, as usual.  Turner Freeman, our sponsors of Legal Matters

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