Partner featured on 2GB discussing Employment Law - 21 November 2013

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

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VOICEOVER

And now legal matters with Turner Freeman Lawyers, great people, great results, great value.

CS       Yeah, Turner Freeman Lawyers, 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 are focusing on employment or contracts at work, various employment disputes and solutions to unfair dismissal regimes etc 131 873, David will be here and he is quite happy to take your calls, he is in the studio right now. Dave, good afternoon.

DT       How are you today?

CS       I am very very well you are tipping one eye on your work and one eye on the cricket hopefully.

DT       It’s got to be done that way.

CS       It’s got to be done, yes it’s a pity they have lost 2 wickets but anyway. We are getting there. Now, contracts 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 such an advantage to have a written contract other than to provide some clarity and certainty. A lot of people think they don’t have a contract of employment or there is nothing in writing and therefore there is no contract. Pretty much everybody and perhaps everybody who has a job has a contract of some form.

CS       So, through the award do you mean?

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

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

DT       Yep, absolutely. There is a range of statute of legislation that protects you but you have also got rights and obligations that come from your relationship with your employer so you have got to turn up and you have got to perform work and they are contractual obligations that you have and all employees have.

CS       Okay, let’s go to callers 131 873, 21 minutes to 2 o’clock. Peron go ahead.

C1       Hi David how are you?

DT       Not too bad Peron, how are you?

C1       Good mate. I have a friend that started a job and was only there for about 4 weeks and she was quite good at it, this was in customer service and she actually got very good and started training people after only 4 weeks of being there and after 6 weeks they let her go saying that she didn’t look as though 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’s a good example of where there is a contract and where there is other statutory protection.  Under her contract, yes they are there is 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 is harsh, unjust or unreasonable and you certainly say that what happened to your friend was harsh, unjust or unreasonable however, there is a limitation in the unfair dismissal system which is that workers that don’t have six months service have got no right to a protection from unfair dismissal so no circumstances whilst it may have been an unfair dismissal, there is no capacity of bringing a claim because she had been there for less than 6 months.

C1       Oh, okay, she doesn’t need to have 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 are on probation and during that probationary period you can generally be let go with no notice.

C1       Okay.

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

DT       It changed with the work choices. It was commonly understood to be 3 months although in different industries. I worked in university for a while and their probation was up to 2 or 3 years at times which is fairly long. With the work choices change it was commonly moved to 6 months and pretty much that it standard practice now.

CS       You made mention of contracts before and I was raising the fact that some people have signed written contracts, most of do, most of us do here.  It is interesting I was always under the impression once again that if you turned up and you wanted a loan or a mortgage with a bank that if you had a contract you could show that you are at work for at least 2 years or maybe even 3 years depending on what your contract says. 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 your working.

DT       No I think that’s true.

CS       They want you to just sign up for the mortgage.

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

CS       Interesting, is says a lot about written contracts or it doesn’t say much about written contracts. Michael go right ahead.

C2       Yeah, good afternoon. Just wondering. My wife, she is I suppose you could call her a head secretary and she has got an understudy and they are looking at sacking her next week and she is going to be taking on the majority of the other persons job. Can she demand a pay rise for taking on the other person’s role?

DT       Good question. There are 2 was to look at it. The first is her obligation is only to do 38 hours work a week or whatever it is that he contract provides for her, it has got to be about 38 hours or else it would be unlawful so if they are now going to do 2 peoples jobs and it is going to take you 50 hours per week and you are going to do it, she is entitled to say well no I only have to do 38 hours a week. In terms of the pay rise her entitlement to get a pay rise is really just a negotiated power. If she is the only one there all of a sudden her employer needs her more and her ability to demand a high wage increases so if there were 2 and one went then the employer had some protection because the other one was still there, now that she is the only one the employer all of a sudden would need to recognise that if she went they would have a real problem and so that means that she has 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 is covered by an award and she is paid at award rates, if there is a change to her duties that might mean she would be at higher level and that might lead to a higher pay rise.

CS       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 lawyers in because you want to keep your job.

DT       Absolutely, you have always got to plan politically and be careful that you maintain a relationship.

CS       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       Yeah you really do, and there are a couple of elements of that, there is certainly the cultural elements so that same thing about asking for a pay rise applies when you get a new boss because a lot of the employment relationships are not really a legal relationship it’s an interpersonal relationship, it’s going into the workplace and talking to the boss and naturally the boss having confidence in your capacity to do the work and you enjoying being there, enjoying the relationships, so when you have a change of ownership often that means a complete cultural change, it might mean different systems, different expectations, it might be better or worse but are different and it can take some time. Legally there are real difficulties, well not difficulties but it creates complexity, sometimes the transmission of business will mean that you end one employment, and you start a new employment and so you would be paid out your leave and everything else and then offered a new contract and that might mean for example that you would have a new probationary period and you could be let go during that period or alternatively, sometimes the way it’s done is that you stay with the one contract and it is just the party that is just the party to the contract changes.

CS       Anne, go right ahead.

C3       Good afternoon guys.  A quick question, I worked in a well paid position, over $120,000, made redundant whilst on maternity leave. I went to the Commission and because the employer decided not to enter into any sort of negotiation, they said we are not giving you anything, see you in Court. How long after you have been to the Commission, what’s the timeframe that you can elect to take it to Court?

DT       The timeframes are generally to bring a claim in the Australian Rights Commission but you need to commence a complaint within 12 months of the action and then you go through that process which it sounds 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 date of the issue of that certificate in order to commence proceedings.

C3       That’s right, the problem is I have asked for that certificate through work 5 times and I still don’t have the certificate.

DT       Well, if it has gone through Fair Work and you have only got 14 days from issuing the certificate but you can’t do anything until the certificate has been issued and you are running out of time. Certainly in your position you would want to put things in writing to Fair Work, not just ring them but write to Fair Work and ask that the certificate be issued.

C3       Yeah, okay and then once the certificate is issued there is a 14 day period did you say?

DT       If you have gone through the adverse action or the general protection provisions of the Fair Work Act then you have got 14 days from termination and Fair Work.

C3       Yeah, so until they actually issue the certificate I am pretty well right.

DT       Well, time isn’t running.

C3       Yeah that’s right, Okay, fantastic you’re a doll.

CS       Good on you Anne, glad you got your question answered the way he usually does David Taylor from Turner Freeman. We have got to take a break and we will come back with David and your calls.

Compensation can’t change the past but it will make a difference to your future so if you are suffering because of someone else’s negligence turn to Turner Freeman Lawyers. Turner Freeman Lawyers are heavy hitters, the type of law firm you would need on your side to win and they have been winning claims for a long time. When a Turner Freeman Lawyer acts for you they draw in over 500 years of combined experience of 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.  Call 1800 800 088 or visit the website turnerfreeman.com.au.  Turner Freeman Lawyers when you need to win your case.

CS       Well, bad news from the Gabba, bad bad news.  I won’t go as far as to say that we have lost this first test but I tell you what I think it’s slipping out of our control.  Michael Clarke has gone for one run as soon as they went back after lunch and Australia now are 3 for 73.

Our legal matters segment brought to you by Turner Freeman, David Taylor from Turner Freeman can take your calls right now 131 873.  It’s eight minutes away from the news at 2 o’clock.  Thomas, hi.

C4       How are you?

CS       We are very well, go for your life

C4       I have 2 full time jobs at one time as long as I am able to hold responsibility of both jobs.

CS       Two full time jobs at once?

DT       You would be tired I would have thought would be the first response

CS       Hahaha

DT       A lot of contracts will contain a provision which say that you agree that you will devote all your efforts to that job and you won’t hold another job without the consent of your employer, but that isn’t a term of the contract then there is no reason why you can’t hold 2 jobs at once.

C4       Okay.

CS       Thomas before you go, can I ask you what hours are you considering working to take 2 full time jobs.

C4       One in the morning and one in the afternoon.

CS       One in the morning and one in the afternoon, so you would start about 4 or 5 in the morning and finish at 8 o’clock at night.

C4       7.30 to 1.30 and then 2.30 to 11??

CS       Okay Thomas, good luck.

C4       Thank you.

DT       I think your first comment was the best, you are going to get awfully tired. Mangi, go for your life.

C5       Hi David.

DT       Hi, how are you?

C5       Fine thanks.  Sorry, I am a bit nervous.

CS       That’s okay.

C5       My daughter just got fired while being pregnant.

DT       Okay, had she told her employer that she was pregnant at the time. Did her employer know that she was pregnant?

C5       Yeah, she told him but she took some time off to go to the doctors because she was feeling a bit sick, so when she came back she called into the office and gave her all excuses but didn’t mention anything about the pregnancy, saying there is plenty of work and this and that you are to do it and you have been a bit slack and all that and my daughter said, yeah no worries I can do the job blah blah blah and then they went to her home while she was home sick and there was a notice ………

DT       How long had she been working there for?

C5       Nearly 5 years.

DT       From what you have said she may well have a claim against her employer.  When did this happen, recently or?

C5       Last week, yeah.

DT       Well, she would want to speak to somebody to think about bringing a claim against her employer because from what you have 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 well then she might have a problem getting a job.

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

C5       Yeah, that’s exactly what my daughter did, as soon as they came there with a termination letter, my daughter went and just wrote a letter that she is resigning so they ripped up the notice and termination letter.

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

CS       Yeah, yeah maybe a call to Turner Freeman, just a suggestion Mangi, it might be worth doing, you can stay on line if you like and we can put you in the right direction.

Doug, very quickly mate, we have got about 30 seconds.

C6       I had a random drug and alcohol test at work, I tested positive I had 2 Panadol Forte sleeping pills prescribed to me. They stood me down pending blood results which is fair enough, the boss has asked me to get a certificate saying I quite the job which I don’t but he had a concern that I took a sleeping pill on the one off occasion which was prescribed to me and he may be dismissing me. What rights to I have?

DT       How long have you been there for?

C6       Only a year and a half but I have been permanent for just over 6 months.

DT       Okay, I think you probably on what you have said if they did move to dismiss you that would be a reasonably good example of what’s likely an unfair dismissal and provided there aren’t other events or other things that are going on so you would want to think of unfair dismissal as a cause of action.

CS       Yeah, Doug do you want to stay on line and maybe David can speak to you. David Taylor, thank you for your time this afternoon.

DT       Thank you for having me.

CS       Terrific, as usual.  Turner Freeman our sponsors of legal matters.