Legal Matter by Turner Freeman on Employment & Workplace Law

Tuesday, 3 June 2014

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

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CS       You will not get an opportunity like this anywhere, free legal advice thanks to our sponsors, Turner Freeman Lawyers and David Taylor from Turner Freeman is in the studio, quick smart, ready to rock n roll, how are you?

DT      Not too bad Chris, how are you?

CS       You’re looking dapper.

DT      Thank you.

CS       Good tie.

DT      Thank you sir.

CS       Is there a code within the legal fraternity about what sort of ties you are supposed to wear?

DT      I think you’re meant to look – pretty boring would be the standard look, I would have thought!

(Laughter)

CS       Like if someone fronted up to work as a lawyer in an orange tie, would they be disbarred?

DT      I don’t know if they’d be disbarred, they may be shunned, there may be some social pressure applied. I’m told that my taste in ties is pretty ugly, so.

CS       No, no that’s a nice tie mate! No you’ve done very very well. I don’t know about the shirt, but the tie is fantastic. Today we are talking about employment law and I just notice one of the stories circulating today is this push from business to take the shackles off employers in particular the retail sector over the Sunday trading and penalty rates. Now how does it work in practice? If a client comes to you and says hey listen I work on Sunday but my employer has done a deal with me. He only pays me this amount of money, but he gives me a little bit more for working Tuesday and so I’m happy with the deal. That is illegal, right?

DT      No. That may not be illegal.

CS       No.

DT      There are ways for employees and employers to come to an arrangement which doesn’t meet the normal award standards, but ensures that the worker is not worse off. So if you want to toy around and you wanted to have a higher hourly rate and not have penalty rates.

CS       Yeah.

DT      Provided that the worker is not worse off over all, that and provided they do it in accordance with the law, the law permits that.

CS       Which would be one of the ways that businesses probably pushing the government for, saying hey listen, we’re not going to take money away from our staff but what we want to do is have a reason to open the doors on Sunday and if that means we need to give them a little bit during the week, maybe that’s something that needs to be contemplated.

DT      The other way that it is also very commonly done and this doesn’t help most small employers, is through enterprise agreements, so enterprise agreements commonly would get rid of penalty rates. I guess the complexity.

CS       But there be less enterprise agreements at the cafe, restaurant end of town.

DT      Yeah absolutely, absolutely, it is the big employers where that’s a good solution for, even for the smaller employers it takes some legal knowledge to ensure that they’ve crossed the “i’s” and dotted the “t’s”, or the other way round.

CS       Yeah.

DT      And actually got the law right because they do, I think leave themselves exposed if they get it wrong and the worse thing is that they’re paying the higher rate and the relationship sours and the person comes back and says well hang on you never paid me penalty rates, I now want them and because they didn’t actually get the arrangement right and lawful they are then exposed to the penalty rates down the track as well.

CS       There is nothing wrong with crossings the “i’s” and dotting the “t’s” by the way. I don’t mind that at all, it’s about being creative, Michael go right ahead, David Taylor is listening.

C1       Yes hi David.

DT      Hi Michael, how are you.

C1       Yeah not bad mate, listen in my work place I was having a disagreement with another worker over a couple of months and my employer summons me into his office and said ok I’m going to get a mediator to solve your problems. And instead I found out that I had been subjected to a psychological assessment exam.

CS       One of those.

C1       I didn’t know I was being psychological assessed. A report was written and that report was held over my head then to force me to apologise. I’d like to know what the legality of that was and what would be my options if they tried to use that report against me at some later date?

DT      I think that if they tried to use it against you at some later date, they’d have some difficulties. It’s pretty problematic way of operating obviously. You’d also have to wonder about the ethics of whoever it was, if it was a psychiatrist or psychologist preparing a report in a work place in the circumstances where the person the report was about didn’t know. That seems to me pretty problematic as well.

CS       Gee, that’s a shocker!

C1       Yeah

DT      I would have thought there are also potentially privacy act issues,

C1       Yes

DT      And a range of other issues. It is pretty poor practice. And it’s also really bad HR practice, because next time somebody says well we’ve got a good solution for you, you should trust us about working through this, you’re going to say well hang on, last time I trusted you came up and you had some sort of psychologist report on me and it all went pair shape after that, and so your investment and your trust of the company and your colleague’s trust of the company, cause they will see what’s going on, is also going to be significantly under mind.

C1       Ok, well thanks David, thank you.

CS       Good on you Michael, that’s very interesting. Psychological Testing. Can you refuse to take a psychological test?

DT      You can’t if you don’t know it’s a psychological test.

CS       True, that it a shocker, but.

DT      As a general rule an employer is entitled to have you medically examined only to the extent that they reasonably need it and it’s relevant to your employment, so whether it’s psychological or non-psychological if the employer says, well we want you to have a test to see if you’ve got kidney disease and having kidney disease cannot conceivably be relevant to your employment, then they have got no entitlement.

CS       Right, ok. I want to talk about social media. I use twitter a lot because it’s an incredible great source of breaking news, everywhere right around the world and I follow all the news sources, they news stations, the news reporters etc, not just here but in the United States and it supplies me with so much stuff, but I might say things on twitter that my boss, I’m saying this hypothetically, I might say things on twitter.

DT      It’ll never happen.

CS       No I would say things on twitter that the boss wouldn’t like but, if that was the case.

DT      Yeah.

CS       Could that not be argued that, that is separate to my working hours?

DT      But you’re and this is particularly true of someone like you who is held out by your employer in such a public role, but more generally when you’re so tied to your employer, if your employer thinks that it’s been held to ridicule or otherwise subjected to damage because of your conduct, it may say that your behaviour in private is one that is causing damage and therefore interferes with your employment.

CS       I would have thought that a lot of bosses are having to contend with these issues at the moment.

DT      Oh there are enormous issues, particular on Facebook. I mean Facebook has become the place where people go home to vent. Whereas usually you’d go down the pub, 30 years ago you’d go down the pub and whinge about your boss and your friends and colleagues at work.

CS       So a lot more private.

DT      You now go to Facebook and you say something in similar tone but all of a sudden it’s (a) not private, even if you think it is private and (b) it’s there permanently, you can’t sit there and say “no I didn’t say that” in the way you might be able to say that when you’re at the pub.

CS       It’s not a bad thing to discuss on the programme today, if we’ve got listeners that have had friends or family members or maybe even themselves, have a clash with their employer because of what their involvement has been on Facebook, twitter, instagram all the other social network conduits. I’d love to hear about the case and how you faced it and what the response was from the work place, 131873, our Turner Freeman segment, legal matters.

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 Lawyers. Turner Freeman Lawyers are heavy hitters, the type of law firm you need on your side to win and they have been winning claims for a long time. So when a Turner Freeman Lawyers 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 Lawyers a call. They’ve got offices throughout New South Wales and Queensland; just go to the website, turnerfreeman.com.au.

Yes in our legal matters segment, free legal advice from David Taylor at Turner Freeman, 131873 we are talking employment law today, contract law, but we touched on social media just prior to that break. Is it true that potential employers would check your social media pages before they decided that you were their next employee?

DT      Absolutely and is almost routine now in many employments.

CS       Is it. And they would look at the things you’ve said on Facebook.

DT      Facebook and twitter and maybe linkedin and a few of the other ones, but the online presence of somebody is one of the things that is really easily checked and more generally one of the things about the internet is you’re able to find out things that have happened to people or by people in the past going back for years and years.

CS       Very true, history stays with you, Sam go right ahead David is listening

C2       Hi David I’ve got a super question. I have been working with my current employer for about 3½ years now and I haven’t been given my super account details so they opened me up with one that the company was running. About a year after that I got a letter from that company stating that there has been less than 5¢ deposited in my account, so they have had to close the account down. I’ve approached my employer numerous times and keep on getting the run around and now it’s been 3½ years with no super, what can I do?

DT      The proper body to police super contributions is the ATO. So what you need to do is to approach the ATO and explain to them what’s happened and they have a process where they will take some details from you and they will then approach your employer and they can commence proceedings to recover unpaid super and to issue penalties against the employer in respect of the unpaid super.

C2       What about all the interest that would have gathered over the last 3½ years with that money will that get paid out as well?

DT      I’m not sure. That’s ultimately a matter between the ATO and the employer and I’m not sure the terms on which they generally recover and the extent to which they get penalties, it’s often a very difficult and slow process but it certainly one, that’s the way to go forward. One of thing about super, because it is not a payment to you, it’s a payment to your superannuation fund, it’s very hard for individuals to enforce rights about super because they never actually had, they were never going to have the money directly paid to them, which is why it needs to be done through the tax office and the tax office is not always as vigorous in seeking to obtain our money as we would perhaps like them to be.

C2       Yeah, ok thank you very much for your help.

CS       Good on you Sam, much appreciated, 131873, Helen hi.

C3       Oh hi Chris I’m just after a bit of advice from David. My husband has a disability although he is a very capable man and able to work and last year he was employed by an organisation and began in the middle of May, obviously they made that selection decision based on his skill set. He was never placed in the role that was, basically that he was hired for or that was suitable to his capabilities, his induction training got cancelled, he wasn’t trained in the skills that he needed to perform his role and then they sort of brought a few performance issues up, a lot of them were related to that lack of training in a disciplinary meeting. There was very little and very scatty evidence, I attended the meeting with him as his advocate and during that meeting, it was quite awful it went for about 3 hours, a lot of the evidence was sort of here say or this persons word against his and all the rest of it. After the meeting he was very distressed and I took him to our GP and he was deemed to be suffering from stress and anxiety, he went off to the appointment with the insurer, from the work point of view who also found that he was suffering from stress and anxiety, however his workers compensation claim was refused under Section 11a of the Workers Compensation Act and at that point we did obtain advice from Turner Freeman and they did say we would have a very difficult time fighting that because of the disciplinary action that had been brought whether it was unfounded or not was not really the point, however we have been trying to get the organisation to correspond with us about his future with the organisation because he still has been given the outcome from that meeting and they have given us the absolute royal run around, back in the beginning of April they said that they could have that meeting if we provided a letter from his doctor stating that he was mentally fit to have that meeting, now he obtained that letter on 7 April sent to the organisation, they have made all sorts of excuses about how they didn’t receive the letter, we’ve made umpteen phone calls that haven’t been returned and today we’ve actually gone in, in person and delivered the letter to them by hand.

CS       Great stuff.

C3       But all this time he has been without income because the workers compensation claim was denied but he has always tried to uphold his end of the bargain by providing what the organisation.

CS       Can I interrupt Helen are you dealing with someone specifically at Turner Freeman.

C3       We did see one person once. Only on that one occasion to see if we had recourse to fight the decision that had been made about his workers comp, but I’m just wondering now all that loss of income in there any potential for him to say to them look you’ve dragged this on and I’ve kept my end of the bargain and sort of dragging it on, I don’t know, you know.

DT      The short answer to that will be, it will be very hard to recover that income for the period when he’s been, does he remain unfit for work?

CS       No, no our doctor has actually written in the letter that he is able to attend that meeting and have the discussion about his future with the organisation and that providing the correct training is provided as it should have been back when he started, then he should be fit for a role that is suitable.

DT      Look there are really 2 issues, one is whether or not having the meeting and the second is the issue around his ongoing engagement with them, I think you probably do need some specific advice on the whole thing which is unrelated to the workers compensation issue and certainly don’t provide you with any advice on that. But in relation to his employment I think you need to get in contact with a lawyer again whether, and discuss the specifics.

CS       Yeah exactly, it’s a big step to then take action to recover money like that because they will stand in the way, won’t they.

DT      Absolutely and it will become hard and that will become the issue rather than the ongoing employment, which should be the crucial issue.

CS       OK, Elaine is on 6, Elaine go right ahead.

C4       Oh hi there, I had an employment contract for 6 months. I was terminated after 3 weeks. I just wondered whether a contract means a contract in employment, for employment purposes.

DT      There is often a strange conflict between these things so you can have a fixed term contract which contained within it, termination provisions which allow the parties to terminate it before the contract would expire at the end of its term, so if you’ve got a 2 year contract which says that this contract will end after 2 years, the contract may also contain a provision that says that either party may terminate this contract at anytime during contract by provision of notice. That’s quite common and indeed certainly it would be, it’s very common for any contract to have probationary period. And for an employer to be able to terminate an employee during the probationary period even if it is a fixed term contract.

C4       Ok given a reason, or does it has to be serious misconduct.

DT      Not at all, the point of probation is, it can’t be unlawful, so it can’t be on the base of your race or sex or age or any of those things, but the point of a probationary period is, it doesn’t need to be for any reason and no reason needs to be given.

C4       Oh, ok but what if you think it is for age for instance.

DT      Well then you, and we’ve discussed that before, it’s often very hard to prove, but if it is for age and if you’ve got some evidence that it’s for age then it may be actionable.

CS       Alright Elaine that’s the point and we’ve discussed that before on the programme. This is from an anonymous caller, this is a beauty …. Is it legal to work in your lunch break and claim it as overtime? I knew that would get ya!

DT      Is it legal.

CS       It’s ingenious.

DT      Most employers will have policies or procedures about how you’d be able to claim overtime. So if you’re working extra hours you would generally need to do that with some approval, there would be few employers that would say, you get to make up whenever you take the overtime, or else people might just do rather a lot of overtime and all of sudden.

CS       Yes, that’s right.

DT      At the end of the week.

CS       See we work at lunch time here, but we don’t claim overtime.

DT      I think that would be the common practice.

CS       Nat you are the last caller on the cab rank, go right ahead.

C5       Yeah how ya goin Chris.

CS       Very well.

DT      Hi Nat.

C5       Our employer writes about us on Facebook, me and the other employees here at work.

CS       Derogatory stuff?

C5       Yeah basically like we’re retards and stuff like that.

CS       Really.

C5       Yeah I’ve got it all screen shot and taken photos of it off his Facebook. Like if we were going to go for a new job, would like a new employer look at his Facebook and he could probably think I don’t want to hire that guy, cause he is a retard, you know what I mean.

CS       I know he wrote that word, can I just say he wins the award as the world’s worst boss.

C5       Don’t worry we agree.

DT      There are a bunch of issues here, there is some issues about, if he causes you damage because you can’t, well first up there is a defamation issue, Facebook is publishing it and you can be exposed to a claim in defamation as a result of what is written within Facebook and if causes you damage such that you don’t obtain other employment then that may potentially be part of the damages.

CS       If you wanted to go ahead with that you could, but of course they want their job, they want to keep their jobs!

DT      Absolutely, and that’s really the difficulty in all of these things.

CS       In all of the cases that we have discussed today, if you want to keep your job, well it’s not such a good career move to start taking legal action against them.

DT      No, you’ve got to be so careful, it’s about, I mean at the end of the day, employment is mainly about human relationships and if you lose the human relationship doesn’t matter what the law says, you’re in trouble.

CS       I’ve run out of time, thank you so much for yours this afternoon.

DT      Thank you for having me.

CS       And very good tie, I just thought I’d add, Dave Taylor from Turner Freeman our legal matters segment, thank you so much for the calls and we will be back into legal mode next Tuesday on the program.