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Your rights associated with contracts, discrimination in the workplace

Partner providing Q & A on the 2GB Chris Smith Afternoon Show discussing issues in relation to Workplace and Employment Law 28/03/13

Thursday, 28 March 2013


CS       We’ve been telling you about this for about two weeks now and I’m really happy that we’ve got this segment on the program because when we talk about legal issues, when we talk about your rights, problems associated with contracts, discrimination maybe in the workplace. When we talk about aspects of the law, people embrace the idea of being able to ask questions and have their query solved. Well this is your opportunity. Each and every Thursday, thanks to the people at Turner Freeman Lawyers. They do just about everything as we discovered yesterday when we chatted with David Taylor. David Taylor, one of the senior partners. David is in the studio today. We’ve got a number of issues and a number of legal issues to discuss but by all means, if you’ve got a question for David from Turner Freeman Lawyers, 131873 is the telephone number. They’re new sponsors of the radio program and the Station and we’re very pleased to have them on board. From Turner Freeman Lawyers, David Taylor. David, thank you for coming in.

DT       Thank you Chris for having me.

CS       Fantastic. 131873.

I want to talk firstly about the dangers of social media. This is such a new frontier. Do we actually have any laws in place? In New South Wales or Federally that covers social media?

DT       No, would be the short answer to that.

CS       No.

DT       There’s a range of laws that touch on social media but, particularly around employment, but also in other aspects of people’s lives, it’s just an enormous issue in terms of the changing way people operate and interact with each other.

CS       See, even if someone gets on a blog, or gets on Twitter, and says that I’m a dill of massive proportions and goes on to defame me, am I able to take action on that? I’m going away from our subject but I just want to know, do the laws of defamation apply in those circumstances the same way they do in other media formats?

DT       Yeah they do. There is some real complexity about where publications happen around that sort of thing so, whereas it’s usually pretty easy to find where something’s published when you’re working with the internet and looking at the internet and how it operates, that becomes a fair bit more complex but it is…the general law applies and just because it’s expressed on a computer screen or in a text message or in any other way, doesn’t provide it any immunity from having been said.

CS       Ok, give us an example of a woman in the US who was sacked for tweeting a photo. And this is where you get to that part of where social media impacts on someone’s workplace.

DT       Yeah, this was an interesting example from earlier in the week. A woman was at a conference and she was sitting in front of a couple of blokes and she could hear them consistently going on with sexist and comments about her and about other women at the event. They were making just generally derogatory and unpleasant comments of a sexual nature. She blogged about it, so she wrote something on her blog which was published and then subsequently she turned around and took a photo with her phone and tweeted the photo with a comment as to what they’d been saying. The effect was widespread. A couple of things happened. They were asked to leave the conference. One of them ultimately got sacked and then she went back to her employment and her employer felt that she…because her twitter was used for work as well as privately, had brought him into disrepute in some way and it wasn’t the sort of message he wanted to get out as an employer, he sacked her as well.

CS       Right. Is this why when you get on Twitter and these other social areas and you see, for instance, Joe Blogs, reporter at Channel 9, my comments don’t reflect on my workplace. Why do they have that rider? Has this come from some lawyer in their organisation?

DT       Maybe. I don’t think it would help them a whole lot. I mean, if you see somebody who’s a well-known celebrity saying something and this has happened from time to time…Stephanie Rice springs to mind a couple of years ago.

CS       Yeah, yeah.

DT       The fact that you say that this is my opinion rather than my employer’s opinion doesn’t change the fact that the opinion may be pretty offensive.

CS       So this works both ways. Not only what you’re saying is a good warning for people who do use social media to make sure they watch what they’re writing and they’re distributing but also for people who may be on the receiving end of some of this, there is action you can take.

DT       Yeah, absolutely. I mean, well, one of things…one of the difficulties in terms of workplace disputes over time has always been proving things and so the flipside of this where people should be cautious and people shouldn’t do these things is that it’s becoming easier for people to prove the conduct that they previously only said had happened and the other person said it hadn’t happened, it’s easier to prove because they can say well here’s the piece of paper that shows.

CS       Yeah, it’s there somewhere. It’s there somewhere.

DT       Yeah, and this is particularly relevant around that huge issue in the workplace with bullying. Bullying extends onto Facebook and people go home and their are comments made about them on Facebook and rather than it just being in the workplace where they can’t prove it and they said…someone says and they say no it didn’t…it’s now on Facebook and it’s there forever.

CS       In more general terms, a boss taking action against an employee, an employee taking action against a boss, are there clearer delineations of what legal action can be taken nowadays or has it got very complicated?

DT       No, it’s always been complicated and it’s still complicated. Just keeping it around the social media, it’s become more complicated.

CS       Yeah, I would have thought so.

DT       because there’s this breakdown in business and private life effectively for a lot of people, particularly for younger people so, you know, I’ve had cases that I’ve worked on where employees of a multi-national organisation in a single site and they might have a Facebook group where they talk about things on Facebook with other co-workers. Now is what’s said there…it’s not held out to the public, the public can’t go and see it…should what people say on that be held against them in their employment?

CS       Yeah right. We’ll take a break now and we’ll talk about age discrimination too and, in particular, if listeners have been involved in some kind of discrimination because of their age. Maybe…how old they are, and they were somehow turfed out of a business and you think you’ve got a case. Maybe it’s something you want to run past David Taylor this afternoon.

23 minutes after 2. Legal matters this afternoon on the afternoon program with Turner Freeman lawyer, David Taylor. The number’s 131873 some free advice for you this afternoon on these issues. I want to talk about age discrimination. It is a clever thing for a boss to get rid of someone based on their age because it’s almost impossible to prove that they’ve got rid of you because of that David. How does an older person who, say, in their 50s or 60s in a workplace for 20 years, how do they prove that they’ve been thrown out because of their age and yet no one has actually stated that to them?

DT       It’s enormously difficult Chris. I think the first thing…

CS       But it happens all the time right?

DT       It does and the first thing I’d say, it’s not a clever thing for a boss to do because often those are the people with a huge amount to offer employers.

CS       Yeah…experience, loyalty…

DT       A whole range of things and they’ve raised their kids, they’ve moved through that stage in their life and their trying to settle down and just focus on getting through to retirement and they’re a huge contribution to make which isn’t to say that people with kids don’t also make a huge contribution.

CS       A very good point.

DT       The second point, you’re absolutely right, it is incredibly difficult. There’s laws that protect people from being discriminated against on the basis of age and the laws don’t require that the dominant reason for the discrimination to be age so if there’s discrimination…if two people are treated differently and one of the smaller reasons for the difference in the treatment is their age and there are other reasons that aren’t age related, that’s still age discrimination. That’s still unlawful. You can’t take age into account when you make a decision as an employer in a whole lot of other ways in life.

CS       Yeah, alright, that’s a very good point. If you’ve been involved in any of those cases and you think you’ve got something to contribute to our program this afternoon 131873. Let’s go to Michael on line 1, Michael go ahead, David’s listening.

C1       Yes, hi David, I have two issues with my employer. One was that they issued me with a first and final warning letter for an alleged harassment or another employee but I never saw any printed information or any letter outlining the actual nature of that harassment and, secondly, as part of a mediation process, at least that was what I was told, they conducted…my employer conducted a psychological assessment report on me without my authority then used the findings of that report to support that letter.

CS       Oh, that’s rich.

DT       That’s pretty tough. I think in terms of being shown documents, the obligation isn’t to show you the full complaint. There’s no obligation to show you everything that’s said so if someone makes a complaint around harassment, the employer isn’t required to say well, here’s the complaint. What the employer’s required to do is to show you all the details of the complaint that enable you to respond properly. So, it’s not good enough just to tell you things in a meeting and tell you in very broad…without detail or without particulars. You need to be brought in and actually be given an opportunity to go through it and not in a rushed way.

CS       So you need an opportunity to have your say.

DT       Absolutely and I think that the appropriate process that good employers will pursue would be to provide a letter which says this is the complaint that’s been made about you, can you provide a response? And then for the employer to take that response to interview other witnesses and finally, to make a decision. The suggestion that you get a medical report somehow to support that on the basis of a personality type is not something I’ve heard of happening before and it seems…

CS       Bizarre.

DT       Yeah, rather creepy.

CS       Yeah, is it creepy to you Michael too?

C1       Well it was a total shock. I mean, I was under the impression I was being interviewed by this person, an independent person outside of the organisation to help resolve issues within our department and it was presented to me as a mediation process. Then the next thing I know, I’m sitting in front of the Chief Executive Officers at this organisation and they pushed in front of me and my union rep a document which said Psychological Assessment Report and I didn’t even know that that’s what had happened.

DT       Was it prepared by a psychiatrist or psychologist?

C1       Yes…who didn’t present herself as a psychiatrist. She just presented herself as an independent mediator. But it was on the basis of that report and this unseen letter that they issued me with a first and final warning letter.

CS       Well, mate, if you want some redress or you want some kind of…or you want your job back, I’d be suggesting you take it further but that’s just my idea. I’ve got to move on to other callers Michael but if you do want to take it further, Turner Freeman lawyers can help. I can quite happily hand you some of those numbers by staying on line, I’ll put you back through the Bridgette. One here from Justine on the email, through our feedback section.

Email   “I was sacked last week from my job and given four weeks notice. When I asked why, they told me they didn’t need a reason and showed me a clause in my contract that said, “Your employment may be terminated at any time by the giving of four weeks notice”. Are they able to sack me for no reason? What could I do?”

DT       That’s a great question. Contracts of employment generally don’t require a reason to be given and an employer’s free to sack someone under the contract without having a good reason as long as it’s not discriminatory. The protection for employees comes in the Unfair Dismissal laws which are the statutory laws that provide protection against unfair dismissal which is harsh, unjust or unreasonable. So Justine’s solution, assuming that she meets a couple of criteria, would be to go to Fair Work and to make an application for Unfair Dismissal.

CS       That’s interesting because you would have thought they’re opening themselves up as an employer by not telling you why they get rid of you because that only…it’s like a red rag and a bull, you want to find out.

DT       It’s horrible practice. Just horrible horrible practice. It doesn’t do anything for the confidence in the other employees.

CS       Back to age discrimination. Phillip’s got a question, go ahead Phillip, David’s listening.

C2       Yeah, hi David, how are you?

DT       Hi Phillip, how are you?

C2       Good, listen this is something in regard to someone wanting to return in their mature years to tertiary education. Having discontinued in order to take on family responsibilities and being a student was never the highest paid profession, even when there was a tertiary assistance at one stage. I find now that whilst the upfront answer is, no we’re equal opportunity, we give everyone the opportunity to apply. In real life, when the decisions come of choosing between an applicant for a tertiary position, they look at them and think well, you know, if we let this person in, by the time they qualify, they’re going to be mid to late-50s and they’re only going to have a few years left whereas we’ve got this other person who’s 30-something and I’m finding that this is a real issue even though their official position is that they’re not allowed to discriminate on an age basis.

DT       I think you’ve identified an enormous problem that applies not just in tertiary education or other services like that but also, more generally, in the community which is people trying to enter into new things in their 50s and 60s find it incredibly hard.

C2       No matter how much you put forward, the benefits of your life experience and the things that you might bring to the table, bottom line is, their official line will be, no we don’t…we know we’re not allowed to. They actually say we’re not allowed to take age into account but you are made fully aware and even people outside will say, well look, what are they going to do that with two people with seemingly with equal credentials. One with 20 or 30 years to offer after they graduate or move into a new graduate position or someone who’s got 5 or 6 years to offer and there doesn’t seem to be a way around it even though it’s not supposed to be a defining or deciding point.

DT       I think it goes beyond a legal matter and it’s fundamentally a cultural matter. It’s about how we approach and value older members of the community and the mindset that says well he’s only got 5 or 6 or 7 years left, whereas this other person might have 20 or 30 years ignores that massive other range of things that may happen to the younger person. They may leave, they may not work out, all of these things and its simply, at best, a single factor in a package of many so I agree with you absolutely and I think it is an ongoing problem but one that’s very difficult to work out how to deal with because as we discussed before, trying to work out where age discrimination is actually happening is so so hard.

CS       Yeah, exactly. Thank you Phillip, thank you very much for your call. 131873 courtesy of Turner Freeman Lawyers, new sponsors on the program. We’ve got a segment, Legal Matters with David Taylor. David’s in the studio right now. We’ll take Richard’s call. Richard, go right ahead.

C3       Hello Chris, David.

CS       Hi.

C3       This is really good. Just one quick comment about the gang members out West.

CS       Yeah, quickly.

C3       It’s called the LICOS Act which Mike Gallagher was pushing before he was Police Minister being that out of power that’ll fix them. Look, I spent 37 years in law enforcement, resigned in 2008, started to apply for a number of jobs and got some interviews, got somewhere, got knock-backs and then I started seeing a pattern of those knock-backs. Those knock backs were coming from my previous employers. I’m in the present process of getting information from the Information Commissioner in New South Wales so that I can identify why I am being discriminated against.

CS       You reckon you’re being black-listed.

C3       I have been black-listed. I have proof of the black-listing. I’m now waiting for a decision of the Information Commissioner. My question is to David, does Turner Freeman see a resolution to that? Do they handle such cases? And if I came to see them would they consider it or is it because it involves State and Federal agencies playing around this employment area, it’s just too hard for anybody to have a look at?

DT       I don’t think…the fact that it involves State and Federal agencies would be an impediment to us or any other law firm taking it on. Lawyers are pretty good at taking cases on against more powerful interests and we deal with that pretty routinely. Of course, in a matter like yours, you’d have to look at the facts and actually work out whether there were…try to identify the pattern and how you could prove the pattern and whether the pattern was form prohibited reasons. If you could identify why you were being black-listed.

C3       I’ve identified that.

CS       The answer’s got to be yes then.

DT       Well, the answer is certainly, potentially, yes.

CS       Ok, Richard, stay on line and we’ll get you the right communication. David, thank you for that. Good start to our segments on a Thursday and we look forward to covering a whole gamut of issues. We didn’t get to independent employment contracts and contractors and some of their rights and stuff. We might cover that on another day but we look forward to seeing you in here and some of your colleagues in the Thursday’s ahead. Thank you mate.

DT       Thanks for having me.

CS       Alright, legal matters it’s called, sponsored by Turner Freeman Lawyers, David Taylor in our studio this afternoon and keep those questions coming during the week leading up to Thursday. You can send them to our feedback icon and we’ll get that information to David.


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