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Partner providing Q & A on 2GB 8 March 2016

Q & A on 2GB discussing Employment Law 8 March 2016

Tuesday, 8 March 2016 


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


CS       It’s time for some free legal advice. Yes, well plenty to talk about in terms of employment law today, which is the focus of our Legal Matters segment. 131 873 is the telephone number. This is where you get free advice today from expert Turner Freeman Lawyer, David Taylor. I should mention too again we’ve got that $100 Westfield voucher to give away to one of our callers between now and the top of the hour. So $100 to give away to one of our callers and remember you can pick up depending on which local area you live in, your local newspaper to read the Turner Freeman Legal Matters column. Their lawyers cover a range of legal topics including compensation and negligence law, family and employment law, wills and estate law, superannuation, disability claims as well. Now this week, CommInsure is being accused of turning its back on an employee that was suffering mental illness. Now the former Commonwealth Bank staffer, Matthew Atwater won awards for his hard work with the Commonwealth, however he was dismissed as suffering mental illness and CommInsure would not cover him. Now it’s an important issue and I’m sure he’s not the only one being unfairly treated in the workforce while dealing with mental illness and today of course we had One Nationals Centre call for a Royal Commission into the Commonwealth Bank over insurance and allegations of corruption. David Taylor from Turner Freeman is with me in the studio. You can talk with him by dialling 131 873. David, thanks for coming in.

DT      Thanks for having me Chris.

CS       Now is what the Commonwealth Bank did to Matthew Atwater at all legal?

DT      Well there’s two separate Commonwealth Bank entities involved in the story.

CS       Right.

DT      And one could be acting legally and the other one it would appear probably wasn’t. So there’s CommInsure which is an independent insurance arm and then there’s the Commonwealth Bank that as his employer and so the Commonwealth Bank, one from the story that appears, took the view after a period suffering quite severe mental illness but he wasn’t able to continue to function in the workplace and an employer can potentially do that. An employer does not to keep the job open forever if the somebody can’t function because of an illness, be it a mental illness or ……….

 CS       Apart from pregnancy.

DT      Well pregnancy isn’t an illness.

CS       Yeah.

DT      There are specific rules around pregnancy that you’ve got 12 months of maternity leave and so they took the view that he wasn’t able to function, terminated his employment or caused it to come to an end. He then made an application on his total and permanent disability insurance or his salary continuance insurance which is an insurance product he had to protect him in the event he was unable to work because of an illness and CommInsure another part of the Commonwealth Bank conglomerate said, no no, you’re not disabled enough and so therefore they refused …..

CS       Despite the fact that he could prove he had a mental illness.

DT      Yes. it’s about the level of disability and that the nature of the …. the level and extent of and permanency of the disability.

CS       Right.

DT      And so notwithstanding…. you’ve got the bank on one hand saying, sorry you can’t work because of this – the insurance arm of the bank is saying – well we aren’t going to pay out on the policy because we don’t think you’ve met the criteria.

CS       Right. Now, today we’ve heard there should be a Royal Commission according to National Senator over additional treatment of customers and of course some of this is….. they are all allegations at this stage – we’ve got to be careful about how we deal with them – but it’s been acknowledged by the Commonwealth Bank that they need to amend their mistakes and get their system correct. So Ian Narev said earlier today.  Have they done the wrong thing?

DT      They are all allegations, so if the allegations are true you would….. it certainly appears like that…… When there are comments from there – in their internal system saying you can’t fake organ failure and that’s what people are being denied for. It’s not painting a great picture.

CS       So when you’ve got a life insurance policy and they find ways to convince doctors to downgrade the ailment that you had, they then don’t have to pay the life insurance, right?

DT      Yes. So the space we’re in here is a series of insurance products that a lot of people have in their superannuation and so whereas you have a work related injury, that means you can’t work, people generally turn to workers compensation.

CS       Yeah, yeah.

DT      If you’ve got an injury that isn’t work related or in any event, people often look to the insurance products that exists in their superannuation fund.

CS       Right.

DT      So there’s a series of things. There’s TPD insurance, which is total and permanent disability, there’s another one called Salary Continuance, there’s another called Income Protection.

CS       Right.

DT      Now, like all insurance policies, they all pay out depending on the terms of the policy and people don’t generally get into the specifics of the policy when they enter into it and particularly because it’s that one step removed being done through their superannuation fund and often bought in bulk and so when they go to make a claim, they find either that the policy doesn’t respond or that the insurer is slow or difficult responding or that and…. or that the insurer is just refusing to deal with it. It is certainly an area where from our experience, insurers tend to be often slow and can drag it along and it could be quite difficult to bring claims and often you need to end up saying, we’re going to court to enforce this right, before they’ll actually pay out.

CS       But there is a difference between scrutinising the claim for life insurance………

DT      Yes.

CS       And stepping over the line and trying to change the facts as they stand.

DT      There certainly is. There’s a continual between vigorous protection of the insurer’s position and exerting its power simply to deny legitimate claims knowing that the person would then need to go to court to prosecute it in order to get their money.

CS       The allegations are incredibly serious and already calls for a Royal Commission. We’ll take a break – straight after that we’ll go straight to your calls. 131 873 with that $100 to give away to a caller as well from Westfield and also from Turner Freeman. 13 minutes away from 2. 13 minutes away from 1 in Queensland. Chris Smith across Australia.

Short Break 

CS       Okay straight to your calls on our Legal Matters segment, courtesy of Turner Freeman Lawyers, David Taylor in the chair. We’re talking employment law. Mary, a question to David, he is listening. Go right ahead.

Caller 1           Mary 

Mary               Yes hi. David I’m in exactly the same position as the case that you just outlined, where I was an employee of the Commonwealth Bank and went through the same process as that person and I’ve also been aggrieved about it. A couple of years ago now and I wonder whether it’s too late to take it further? They tried to pay me off with a couple of week’s salary at the end of everything.

CS       A couple of weeks?

Mary  Yeah and…..

CS       How generous they are.

Mary               Yeah, I thought that too, so I refused. The Union was involved as well and when that offer came I said – no thanks – I’ll just leave it open…. so…..

DT      How long ago did all this occur?

Mary               Um, 2013…..

DT      Look, it will depend on the facts but it may well not be too late to do something about it.

Mary               Yes ……

DT      Depending on

Mary               Look into it?

DT      Certainly. So I think what you need to do is speak to a lawyer about it and get some advice as to whether or not there is something there you could do.

Mary  Okay.

CS       Alright Mary stay right there we might be able to get you in contact with someone that David knows or we can funnel your query to the appropriate authority and have your case heard at least in private at this stage, so we’ll put Mary through to Gabriella. Brant, go ahead.

Caller 2 – Brant 

Brant              G’day David. Thank you. In November my partner was diagnosed with cancer and subsequently I’ve been off work since early start of November and taking leave that I’m entitled to or taking leave entitlements. I’ve probably got about 3 or 4 months leave entitlements annual leave, long service and sick leave etc still left, but work has now asked me to submit like a letter requesting for further leave and they’ll decide whether they are going to let me take any more leave. My question is, can they just say well okay in 3 weeks that’s it – we are not going to give you any more leave – you’ve got to terminate your services?

DT      That’s a really complex question because there’s a bunch of different leaves that you might be taking, so you might be taking carer’s leave which is a form of…. which is personal leave, a form of sick leave essentially, you might be taking annual leave, you might be taking long service leave.

Brant  Yes

DT      There’s no general discretion on the employer to deny sick leave, so if you’re sick they can’t say well we choose not to accept that you are sick and require you to attend.

Brant  Yep.

DT      That’s distinct for example to annual or long service leave where an employer does have a discretion as to whether or not they want to omit leave to be taken a certain period and provided they don’t exercise that discretion capriciously or unfairly, they can reject an application if it’s not …… if it doesn’t fit in with what the business needs.

Brant  Yeah – sure.  yep – okay.

DT      With that said, they can’t reject if its…… well if they accept somebody else who wasn’t caring for someone with a disability because that would be unlawful. So there’s a fair bit going on and if they do look at rejecting, then you certainly…… well (a) I think you’d want to explain fully to your employer what’s going on and why it’s important that you’re allowed to take this leave and….

Brant  They know that yeah……

DT      …………..but make sure that’s in writing….

Brant              Yes it is.

DT      And then if they do reject it and you can’t find to work around with them you might want to get some advice on it.

Brant              Okay. Alright. Thanks a lot David.

CS       Good on you Brant. Thank you. Michael go right ahead.

Caller 3 – Michael

Michael           Good afternoon, I’m just ringing up …… my wife’s at work and it’s sort of like emotional bulling and she’s very emotional – she comes home emotional – because – it’s just little things like – the management that doesn’t talk to her – none of the staff will talk to her – she hasn’t done anything wrong to anybody and it’s just a ruthless place to be part of – when she comes home and she sits in her car at lunch time and no-one talks to her – and I just want to know – if there is anything sort of – is that just bulliness or is it just – I don’t know – She’s casual – she does not want to lose her job either – you know – I just want to….

DT      Bullying is unlawful and there’s a system in the Fair Work Commission that deals with bullying and one of the known things of bullying is not only does it cause a huge amount of illness, distress, lost productivity, it’s also often incredibly hard to recognise. What sounds objectively minor to people on the outside can feel for people on the inside who are actually suffering from it – quite devastating and distressing. And so what your wife’s going through maybe a kind of bullying like that…. There is a jurisdiction in the Fair Work Commission known as the Anti-Bullying Jurisdiction where you can go and make a claim and the Commission will often – will to assist in talking to the employer – in trying to finding a way to eliminate the bullying. It’s a difficult jurisdiction and generally the best thing initially to do is if the employer is big enough to raise it with the human resources department and say this is what I’m concerned is going on and try and get some assistance in a constructive way internally to ensure that the relationships are as good as they can be.

CS       Take the easy route first. Michael. How about $100 courtesy of Turner Freeman and Westfield for you?

Michael           Oh, thank you very much….

CS       Alright. No problem mate and all the very best with what you’ve got on your plate at the moment. We’ll put Michael through to Gabriella and we’ll make sure he gets the $100 Westfield voucher. We’ve run out of time once again. David Taylor. Always a pleasure to have you in.

DT      Thank you so much for having me.

CS       Thank you mate. Lawyer from Turner Freeman – our Legal Segment coming up every Tuesday afternoon right here.


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