Partner featured on 2GB discussing Employment Law - 19 April 2016

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CS – Chris Smith/DT – David Taylor /C1,2,3, etc – Callers

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Read the transcript below:

Well it doesn’t get much worse than what happened to the Queensland nickel workers, almost 800 workers have lost their jobs as the company goes into liquidation, I think we should find out today what they can do legally, cause it’s a mess and we’ll also talk about the Grant Hackett scandal. Hackett has apologised for his behaviour on that aircraft but what happens when an employee behaves like that well and truly outside the workplace on his own, is he covered by any rules that he may face from his employer, some of the questions we’ll talk about today in our workplace law segment courtesy of Turner Freeman, legal matters segment and don’t forget this is a chance for you to get some free legal advice, you’ve got to jump in right away though, we don’t muck around with this, 13 1873 and of course we have the $100 Westfield voucher to give away as well, the $100 Westfield voucher courtesy of Turner Freeman. David Taylor, thank you very much for coming in today, sir.

DT      Thank you for having me, Chris.

CS       The Queensland nickel workers, now I know there are different categories of workers here, some were made redundant at the very early stage, others were sort of put in limbo land, not able to access welfare payments etc, so it’s a very complicated issue, but if in general circumstances like these occur and they shut down the nickel manufacturing plant, where do you stand as a worker when one of your key owners has spent all the money?

DT      The underlying principle is around being employed by companies and the idea of companies is you can’t sue them, once they’ve gone into, well once they’ve been deregistered, once they’ve disappeared as an entity, there’s nothing left to be able to chase, so the law has come up with a few different ideas to try to protect workers cause they can be really exposed when a company collapses. The first is employee entitlements are one of the highest priorities of any of the creditors, so before banks, before other people, employee entitlements have got to be paid out to a great extent.

CS       But shouldn’t we have a situation whereby employers should have a pool of funds in place in case that these circumstances occur rather than think, oh what money is left in the kitty now we’ve got to give our employees first dibs?

DT      Well I think that’s a really interesting point and you can trust that with what the second thing the government has done, which is there’s a public scheme now called FEG which has been around for about 15 years, the government’s paid out a billion and a half dollars over that period, which where the government steps in and says we’ve got a pool and one of the criticism of FEG and gears and things like that is it transfers the risk away from the company to the public purse, and so companies say oh we can just do this because they’re going to be looked after by the government and they’re far more reckless potentially, arguably than if they actually had to front up with the cash and there was a real obligation to do it. The third option is the one which has got real teeth and is really underutilised in Australia and that is if a person, director, anybody enters into an arrangement to deny an employee their entitlements, so for example siphons money out just before they go into administration, then there can be an action by individuals with subject to some conditions, against that person directly.

CS       So the union might do that in behalf of the worker?

DT      The union may say well, you know, in a hypothetical case when a person whom may own a business takes a whole lot of money out not long before the company goes belly-up, and it can be shown that they are doing it so as to avoid, one of the reasons to avoid paying the workers, then the union with the consent of the administrator may directly chase that person and try to recover the money from them personally.

CS       Right, okay, just before we take calls, one last question on this, it’s a cat and mouse game between Clive Palmer and whoever has ownership of Queensland Nickel and the government, because the government wants to come to their rescue but you don’t want the government filling the void and providing cash when the owner can and should provide the cash.

DT      Yeah, well that’s sort of the FEG argument where the government’s putting up money what the employer should be paying writ much bigger, you know you don’t want the government coming in and using public funds where individuals are enriching themselves.

CS       Alright, it continues. Sarah has a question for you David, go right ahead, Sarah, David is listening.

Caller No 1     Sarah

C1       Good afternoon, thanks for taking my call. I just wanted to talk about, my husband signed, took a new job two years ago and he signed on as a certain level, certain pay level, certain title and since that two years his boss has changed his workload completely, he doesn’t do the job that he was employed to do anymore, she’s demoted him, different title, less pay, there’s never been another signed, another contract signed. In the original contract it said he had to give 6 months’ notice if he were to leave and he wants to leave but is that, would he still have to give 6 months’ notice at this point in time, because nothing in the original contract has ever been, has ever happened, ever.

DT      This is a pretty well work area of employment contract law, and there are cases which say that where the positions changed from the written contract that was originally executed, into something different, then the terms of that original contract no longer apply. There are other cases which say well it was just an amendment to that original contract and it’s really about the level of departure from the original obligations.

C1       Significant

DT      Well, nonetheless that’s the assessment, so the greater the departure, the more a person is able to say well I’m no longer bound by the terms of the old contract. The second area, and this is the sort of thing where you might want to get legal advice, is if an employer has refused to comply with its obligations under an employment contract, and there may be a danger that your husband has accepted those changes and it’s become a varied contract, but if an employer refuses to comply with its obligations then it’s doing, it may be doing what’s known as repudiating the contract and another party to the contract can accept that repudiation and then they’re no longer bound by any of the terms. So it’s the sort of thing you may well want to get legal advice on to work out the best way forward because the risks going the way are that you can be sued by the employer.

C1       Yeah, my concern is that people that I’ve spoken to legally say, don’t get into this minefield of legal stuff with this because it’s just going to cost you an absolute fortune and you’re not going to get anywhere.

DT      Well, then the only alternative you’ve got is to comply with the easiest terms of the contract which are the 6 months. So that’s really the options, you can either go with what you can see is the contractual obligation that the outside or try to work out another way through it.

C1       Yeah okay. Right thanks very much.

CS       Alright Sarah, good luck, don’t forget Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, family law, wills and estates, commercial litigation, superannuation and disability claims and employment law which is what we’re focusing on this afternoon. If you’ve got a question about contracts, about workplace entitlements, about something associated with maybe wrongful dismissal, give us a call on 131 873. Now, Grant Hackett, the scandal involved in Grant Hackett. Here he is, outside of the workplace well and truly, he’s on a plane, we don’t know how badly he behaved, but we do know that according to witnesses he tried to, what do they call that, it’s a nipple cripple, it used to be called nipple cripple at school when the older kids used to do it to us in Year 10, but you know doing something like that just because this bloke put his seat back etc, and then we’ve seen him you know, slumped down in a wheelchair, who knows how grogged out he was, if he was grogged out, but where does the AOC or those that employ him stand in terms of that behaviour? It’s not at work.

DT      Well, no. So, this is a really good vexed area. He’s going to have different obligations, assuming he’s employed by the AOC, to most of us, because he is in the public eye, he has got, he’s going to reflect back on his employer far more directly than if I go out and I do something stupid on a plane when no one knows who my employer is and I don’t have that reputation or association.

CS       So he’s hurt by his own reputation.

DT      Well there’s really two places you’d look, one would be the contract, because the contract may well have terms that talk about him not doing things that cause reputational damage to him or to the employer and so he may have breached the terms of his contract. That would be not uncommon in a public person sort of contract but would be very uncommon in a person who isn’t in the public eye. More generally you need a nexus to work in order for there to be a, the employer to be able to take action, so you know if somebody who’s employed in a normal job goes out and something that doesn’t interfere with their capacity to do their job then it would be unreasonable for an employer to take action. If it then impacts on the job, so for example, you know a truck driver goes out and loses their licence, it’s not the fact of them having broken the law that would lead to them losing their job potentially, but the fact that they can no longer do their job because they lost their licence.

CS       Fair call. Phil, you;ve got a question for David, go right ahead.

Caller No 2     Phil

C2       Yes, good afternoon, thank you for taking my call. My wife was employed with a company for 10 years, she was employed under a 135 contract agreement, apparently in 2010 this contract was changed, when she went to leave, she wanted to give them a week’s notice, they said no, we’ll only give you, you’ve got to give us 4 weeks’ notice, otherwise we’re going to withhold three weeks of your long service leave in pay, that’s $3,000.

DT      That, unless the contract and even if the contract did, unless the contract had an explicit term permitting that, that’s almost certainly unlawful. There are specific prohibitions in the Fair Work Act which limit an employer’s capacity to deduct any amount from amounts owing. So without the consent of the employee, so the way the law looks at it is, the employer, if the employer is owed money by the employee and we see this sometimes with overpayments, where employers pay a worker too much by accident and they say we want to recover what we paid you, then the first thing the employer should do is try to reach agreement with the employee and if they can’t do that, for whatever reason, then their option is to sue the employee and to recover the money that way, because they’re entitled to recover the money, they’re not entitled as a matter of principle just to withhold the money from the pay.

C2       So because she, the agreement was changed in 2010 that doesn’t hold any water?

DT      Well, you’d have to have a look at the terms of the agreement, there may be something under the agreement that would change what I’ve just said a little bit but as a general principle, it’s difficult to do that. Some contracts do sometimes talk about a failure by the employee to give their required period of notice will lead to something and that is arguably lawful.

CS:      Okay, Phil gotta leave it there, so many others want to have their say and ask a question of David Taylor this afternoon. This is our legal matters segment, courtesy of Turner Freeman Lawyers, back after a break.

CS       Now, courtesy of Turner Freeman Lawyers, this is the legal matters segment, a $100 Westfield voucher still to give away to a caller this afternoon, David Taylor in the studio, Chris, David is listening go right ahead.

Caller No 3     Chris

C3       G’day David, look just a similar call to the last call, not similar but my wife is also, she’s a causal employee, been employed for 11 years and she’s been unofficially put off in Christmas time because they said it’s very quiet in the office at the shop, so they said call back after Christmas and they said look, it’s still very quiet, call back after Easter, still nothing, they’ve just got her in limbo now, they haven’t officially put her off but she’s been there for 11 years, causally and she was enquiring about long service, now they claim she’s not entitled to long service leave, could you tell me if that’s the case at all.

DT      She’s in New South Wales?

C3       Yes.

DT      Yeah, she’s entitled to long service, subject to checking the award, almost certainly entitled to long service leave under the Act.

C3       Okay, because she used to work two days a week and they cut her back to one, I mean she, she took holidays and she’s constantly employed for 11 years.

DT      Provided you’ve got continuous service, there’s a process of working out how much you get paid based on what your salary was and what your wage was over the period prior to being terminated but casual employees don’t have any entitlements to annual leave or sick leave but do have an entitlement to long service leave.

C3       And her being this way, is she sort obliged to, are they obliged to sort of tell her look, we’re going to cease your employment, now that there’s no work for you, or I sort of get the impression there waiting for her to just leave.

DT      Well you’ve also got to, she’s also got an entitlement, although she may be out of time, to bring a claim for unfair dismissal, because a causal employee with regular and systemic work who’s been there for a period has got an entitlement to bring a claim for unfair dismissal if they’re dismissed. The problem with that is always that’s often hard for casuals to really understand or know when they’ve been dismissed because the nature of casual employment is that it can be a bit uncertain and a bit varied. If it’s been now 4 months, it seems pretty clear that she’s been dismissed, you’ve got to bring the unfair dismissal claim within 21 days, so she’s probably out of time, but I think what she should be saying is I confirm that I have been dismissed and please pay my long service leave.

C3       Yeah, okay.

CS       Hey, Chris I want to reward you for your loyalty to your wonderful wife, I’ve got that $100 Westfield voucher for you mate.

C3       Fantastic, thank you very much and thank you David for that advice.

CS       Not problem. I hope it helps and that $100 should help as well, just stay on the line and we’ll put you back through and try and get it to the right address. Phil go right ahead.

Caller No 4     Phil

C4       I was employed as a sub-contractor to provide Eftpos services in the central west, when I signed up and signed the contract it was a 60 day notice required to end that contract, a few months back there I had enough of the job and rang my employer and said look, I’m really over this and said okay finish the week out, now since then, he’s not paid me for the last two and a half months’ worth of work that I did for the company and so it’s going to court, going to legal matters proceedings and he’s now counterclaiming saying that I actually owe him $1,000 for the cost of completing services during that time that I left early.

DT      That all certainly sounds like it’s going to turn on whether or not he consented to finishing up at the end of the week or you just did that unilaterally. If he’s consenting to it it’s a bit hard to see how he can claim damages for your breach of the contract.

C4       I guess the thing is I don’t have anything in writing, that was a phone conversation between the two of us. I didn’t hear anything back from that employer so I wrote them an email saying just to confirm I need to finish up on this day and they said yeas, so now that’s gone as me ending a contract early.

DT      You’re entitled to end a contract early by consent, so if everybody agrees with what’s going on there’s no breach of the contract but if you’re doing something unilaterally then that’s in breach of the contract and he’d be entitled to bring an action against you for damages if that’s what’s arisen.

CS       He probably needs to get some advice though.

DT      I think that’s probably right.

CS       It’s a fairly tricky position that he might be in. Phil thank you very much for your call. David Taylor, thank you very much for coming in and sending out people away with a little bit of proper professional advice and something to think about as well, thank you for that.

DT      Thank you for having me.

CS:      Good stuff. David Taylor who talks about workplace law on this program and we’ll get him back on the not too distant future and thanks to Turner Freeman as well.