Are you thinking of restructuring your business? If you are doing so and looking to make a position redundant, make sure that you are aware of the steps and consequences of doing so, or you may end up in a situation where the employee can bring a claim against you.
As an employer, you need to be aware of the risks of making an employee redundant and make sure that your business restructure isn’t viewed as a “cover-up” for an alternate reason for terminating an employee.
According to s 389 of the Fair Work Act 2009 (the Act) a person’s dismissal is a case of genuine redundancy if:
A person’s dismissal was not a case of genuine redundancy if it would have been reasonable for the employee to be redeployed within:
According to s 385 of the Act a person has been unfairly dismissed if the dismissal:
Case Example
In the case of Heraud v Roy Morgan Research Ltd (No 2) [2016] FCCA 1797, the Fair Work Commission (FWC) determined that the employer had taken adverse action against the employee when her position was made redundant while she was on maternity leave. The employer was subsequently ordered to pay compensation for both economic and non-economic loss.
The employee had made a request for a flexible working arrangement and was then informed that her position was being made redundant as a result of a company restructure – just as she was nearing the end of her maternity leave.
In the case, the FWC decided that the employer had taken adverse action against the employee by making her role redundant, due to her exercising her workplace rights in taking maternity leave and requesting a flexible work arrangement.
The Employer was ordered to pay the employee $52,000 in compensation for a “serious contravention” of the FWA. The Court took into consideration both the economic loss suffered as a result of bringing the claim, and the non-economic loss including loss of enjoyment, distress and embarrassment. The FWC held that the employee was in a vulnerable position following maternity leave and that the contraventions of s 340 of the FWA by the employer were of a “serious nature”.
What do you need to do as an employer?
If you are considering making a role redundant, as an employer you need to be mindful of your obligations including:
If you are restructuring and considering any redundancies, you should obtain legal advice in relation to “genuine redundancies” and the redundancy process to ensure you minimise the risk of an employee having a successful Adverse Action or Unfair Dismissal Claim against your business.
Please contact Angela Backhouse Grace Tully from the workplace law team if you would like advice for your business in relation to redundancies or employment issues.
***Assisted by Grace Tully***
An executor is a trusted person appointed in a Will to manage the Estate. Executors are responsible for taking care of the estate and distributing the assets of a deceased person in accordance with the Will. Anyone over the age of 18 can be appointed an executor and they do not require any professional qualifications.
If someone dies without a valid Will, there will be no executor. An eligible person, such as a spouse or family member, can apply to the court to be appointed the administrator of the estate. The administrator largely has the same responsibilities as the executor.
Executors and administrators are required to administer the estate of the deceased. In most circumstances, either a Grant of Probate (where there is a Will) or Letters of Administration (where there is no Will) will need to be obtained from the Court in the jurisdiction where the deceased resided, before the Executor or Administrator can deal with the assets. Once the Grant is made by the Court, the Executor or Administrator must collect the assets of the deceased, pay liabilities of the estate, respond to any litigation on behalf of the Estate, and ultimate distribute assets to the beneficiaries. At the same time, they are responsible for maintaining thorough records and accounts.
Executors and administrators have an important and onerous role. They have a duty to act in the best interests of the estate. If someone has been appointed executor in a Will and does not wish to act, they can choose to renounce their appointment from the role.
A recent Supreme Court decision in Re Estate of the Late Gerard Anthony Harberl (also known as Gary Anthony Harberl) [2022] NSWSC 704 the Court illustrated what happens when an executor/administrator does not act in the best interests of the deceased estate. In this case, the deceased left no valid Will. The deceased’s siblings took care of the deceased’s affairs after his death before the deceased’s ex-wife, Andrea, was granted administration of the estate by the court.
Under intestacy laws, Andrea and the deceased’s minor daughter were entitled to the proceeds of the whole estate. Andrea was successful in court proceedings to have the net value of the estate transferred to herself, to be used for the benefit of the minor daughter. However, instead of using it for the daughter, Andrea used the money to buy a new car, paid for her own personal legal proceedings and proposed to buy land and construct a new house for herself and her children to live in.
Andrea also began separate and vindictive proceedings against the deceased’s siblings to recoup some money they had spent from the estate after the deceased’s death, for example, the purchase of a tombstone. Andrea was unsuccessful in this claim.
The Court was concerned by the vindictive and frivolous nature of the proceedings and so began enquiries into Andrea’s role as administrator of the estate. They discovered her unauthorised spending from estate monies as well as other activities which were not aligned with the best interests of the estate.
The court decided to remove Andrea as administrator. The court found that she had failed to act in the best interests of the estate in a number of ways, including:
If you require assistance with acting as an Executor or Administrator of an Estate, or if you are a beneficiary of an Estate and have concerns about how the Executor or Administrator is dealing with the assets, you should seek legal advice.
Our team of qualified estate lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the Estate is managed correctly.
The matter of Haynes by her tutor Karen Lindley v Haynes [2002] NSWSC 358 has recently been presided over by Justice Lonergan in the NSW Supreme Court and a judgement has been made that signifies a milestone for historic sexual abuse litigation.
The Plaintiff in the proceedings was horrifically sexually abused by her father when she was aged 4 to 11, between 1974 and 1981. Such abuse resulted in the Plaintiff developing Dissociative Identity Disorder, as well as ongoing and severe physical injuries. The Plaintiff’s physical injuries required a number of surgeries to be performed and provide her with physical challenges to this day.
Justice Longergan noted, “The perpetrator in this instance, Ms Haynes’ father, like most perpetrators went to some lengths to have her believe that it was her actions that resulted in her sexual abuse. Typically, he would couch abusing her in terms of her being punished for wrongdoing on her part.”
In 2017, the Plaintiff brought criminal proceedings against her father and her father admitted guilt in respect of a number of incidents of sexual abuse and was sentenced and received an aggregate term of imprisonment of 45 years with 33 years non-parole.
The Defendant did not actively defend the proceedings and a defence was not filed, resulting in liability being an uncontested issue through the entirety of the proceedings.
Ultimately, the Plaintiff was awarded a total amount of $840,000 in compensatory damages, with $100,000 being for aggravated damages, $500,000 for general damages and $240,000 being for interest on general damages.
This award is a significant leap in the ever-changing landscape of historic sexual abuse litigation as it signifies the highest award a judge has made for general damages to date. This clearly reflects the seriousness in which Courts assess sexual abuse offences and the pain and suffering victims have to endure for the rest of their lives as a consequence of such an offence.
If you or someone you know has been a victim of sexual abuse, we urge you to speak with one of our experienced lawyers at Chamberlains Law Firm to discuss your options in seeking abuse compensation.
John XXIII College v SMA [2022] ACTCA 32
A former student of the Australian National University who successfully sued John XXIII College for a breach of its duty of care after being sexually assaulted in 2015 has had her damages cut by more than $150,000. On 29 June 2022, Acting Justice Verity McWilliam stated that she and the other two ACT Court of Appeal Justices had set aside the original award of $420,000 and instead ordered the amount of $267,500 to be paid by the ANU-affiliated College.
The original Supreme Court decision in 2020 concerned a claim in negligence made by the student, known as ‘SMA’, against the College concerning a social event that occurred on 6 August 2015 called “Pub Golf” while she was a resident at the College. The event involved the College residents moving to different venues or “holes” around Canberra city, with the participants being expected to drink a certain number of drinks to make “par”. At some point in the night, the plaintiff was sexually assaulted by another College resident in an alleyway near Canberra nightspot Mooseheads.
Ultimately, Justice Michael Elkaim held that the College had breached its duty of care. Whilst it was held that the College was not responsible for allowing the Pub Golf event to take place, it was held that it had breached its duty by directing students to leave the ANU campus the night of 6 August 2015 after they had commenced drinking. The Court also held they were negligent in their handling of SMA’s complaint following the assault. Damages were awarded in the total sum of $420,201.57, including exemplary and aggravated damages of $30,000.
In the appeal, the College contested facts raised in the original proceedings, including that SMA had been intoxicated at the time she left the College, that the College knew about or condoned “Pub Golf”, that the Head of College at the time, Geoff Johnston, adopted a stance to protect its reputation, and that the students were directed to leave the whole premises rather than just the residential area. Further, the College argued that SMA had willingly engaged in the event, as a 20-year-old adult, and that there was no duty of care owed to her as a result.
On 29 June 2022, the Court of Appeal upheld the earlier ruling of the Supreme Court, however, the appeal justices found that Justice Elkaim had erred in his assessment for damages for past and future economic loss. As a result, SMA’s payout was cut to $267,000 and she was ordered to pay some legal costs. Despite the reduced payout, the Court of Appeal’s recent ruling still sends a strong message to Australian universities about their liability for students in their care.
Contact our team of experts in abuse compensation claims.
At Chamberlains we believe with our real-world understanding, nationally recognised expertise, and straightforward advice, we’ll guide you through any legal challenges. Big or small. Complex or simple. Start to finish.
Our focus is supporting you through every step of your claim.
Our personal injury team is no-win no-fee law, which means if your case is unsuccessful, you don’t have to pay our legal fees.
1. What is compensation?
Compensation is a sum of money paid to you for the injustice that has occurred to you. This is sometimes known as restorative justice as compensation is sought with the aim or restoring you back to your original position had the sexual abuse not occurred in the first instance. Compensation is usually claimed under three heads of damages, as noted below:
a) General damages: Money for your general pain and suffering as a result of the abuse. In the matters of Province Leader of the Oceania province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 and MC v Morris [2019] NSWSC 1326 the Court awarded an amount of $400,000 for general damages.
b) Past and future medical expenses: As a consequence of sexual abuse, we understand that many individuals are given a psychiatric injury that lasts a lifetime. We understand this and claim for past and future medical expenses required for this injury. We work with our clients to quantify these expenses.
c) Economic loss: Sexual abuse can change the entire trajectory of on individual’s life and this is often highlighted by their career. We recognise that had the abuse not occurred, many individuals would have been able to go on and reach their full economic potential. We claim for the difference between what our client’s would have earnt, at the abuse not occurred, and what they have earnt. This varies greatly from person to person and we work closely with our clients to quantify this loss.
2. What else can I achieve from seeking compensation?
No amount of money can compensate for what has happened to you, however it can seek to give you restorative justice within the scope of the law. Compensation also holds institutions and/or perpetrators accountable for what has happened.
As part of the civil process, we can also seek an apology from the institution or a pastoral apology session.
3. How does the process work?
a) Initial conference – You will meet with one of the lawyers in our team and we get to know you and the circumstances of your claim. We explain the process and damages to you in greater detail and answer any questions you may have. This is an obligation free conference to determine if this process if right for you.
b) Evidence gathering– Once we have reached a mutual agreement to take on your matter, we will spend time obtaining evidence in support of your claim. This will include obtaining school records, clinical records, etc.
c) Medico-legal Assessment – you meet with one of our expert psychiatrists who will write a report to assist us with evidence in your case. We will prepare you for this assessment. Once we have this report we will be able to advise you of the next steps for your claim and work towards attending a mediation or informal settlement conference with the Defendant in order to resolve your matter.
4. Support services:
We understand talking about the abuse is not easy and we seek funding from the Defendant to pay for you to see a counsellor of your choosing throughout the process.
If you are struggling and need support now, we recommend you contact the below services to seek help.
Sexual assault support services:
1800RESPECT
(Phone: 1800 737 732)
Counselling 24-hours a day, 7 days a week.
Bravehearts
Ph: 1800 272 831
Website: www.bravehearts.org.au
Mental Health Support services:
Lifeline
24-hour crisis support and suicide prevention.
Ph: 13 11 14
Website: https://www.lifeline.org.au/
beyondblue
Mental health support.
Ph: 1300 224 636
Website: https://www.beyondblue.org.au/
Headspace
Supports young people aged between 12 and 25 years of age.
Ph: 1800 650 890
Website: https://headspace.org.au/
5. What if I want to be anonymous during the process?
If you would like to remain anonymous, we are able to seek pseudonym orders once we file your matter in the court. Additionally, any mediation or Informal settlement conference you attend will remain confidential.
6. What will I have to pay?
At Chamberlains, we are committed to achieving justice for all victims. We offer a free consultation and a no win, no fee policy. Just as the compensation received differs from case to case, so do the legal costs, so ask one of our lawyers today about what your legal costs could look like if your claim is successful.
7. How do I contact Chamberlains?
If you or your loved one has been the victim of sexual, physical or other abuse, please contact Sarah Hayman sarah.hayman@chamberlains.com.au at Chamberlains Law Firm or call us on 02 6188 3600. We can help you with abuse compensation claims.
At Chamberlains we specialise in Estate and Succession planning. We understand that circumstances in life can make your succession planning requirements more sensitive, such as caring for a disabled family member, who may require care after you have died.
We appreciate making these arrangements can be difficult. It can be hard to acknowledge that you are not going to be able to care for your loved one forever, and that eventually arrangements will have to be made for the continued care long into the future. That’s where we come in. Our expert team works hard so that you are aware of all your options and can make the necessary decisions with minimum stress and maximum care for your loved ones.
We have extensive experience in succession planning for alternate care arrangements, adequate provisioning, guardianship and any other succession elements that will affect your family. We also provide options for succession in blended families and non-traditional family structures.
It is vital to ensure that you have your documentation in place, and this can mean more than just a Will. Our team will walk you through the scenarios that might suit your situation in respect to Powers of Attorney, Superannuation, Life Insurance, Special Disability Trusts and more to ensure that your loved ones don’t miss out on the resources that you have spent your life preparing for them.
Our solutions are tax effective, which means that your estate wont be whittled away before it even has the chance to benefit your family, and ensures that each of your hard earned dollars go further.
Special Disability Trusts
We can assist you in determining whether your loved one meets the definitions making them eligible for a Special Disability trust, and then put that trust in place for them. A Special Disability Trust is a Trust fund for the sole benefit of your loved one that enjoys taxation concessions, and exists to provide funds for care, medical expenses, maintenance, housing and some discretionary funds for your loved one. Special Disability Trusts may also be exempt from Centrelink asset testing if below the allowable concessional amount, allowing your loved one to continue to receive disability payments.
Alternate Care Arrangements
Although there is no alternate to the love and care that you provide, we ensure that your loved one will have structures in place that provide the next best thing, all the while securing those finances so that they stay where they are needed most.
Provisioning
Budgeting is not always easy, especially when putting together a plan for decades after you’ve passed away. We can develop structures that ensure the provisions for your loved ones are secured along the trajectory you set, while still allowing for the bumps in the road that your loved one might have to deal with.
Guardianship
We can explain the process of guardianship, and (where appropriate) assist you in nominating the next guardian of your child or loved one. We can also assist with guardianship questions and applications during your lifetime.
Blended Families
The nuclear family is increasingly uncommon in our modern world. Our expert advice can assist you in making provision for any of your family, and securing that provision for their benefit.
Would you like assistance with your disability succession planning? Call our team of wills and estate planning lawyers.
Contact us today on 02 6188 3600
Businesses who may have the unfortunate experience of a workplace incident or injury need to be extremely mindful of their obligations to notify the relevant safety regulator (SafeWork) as the primary duty holder, a Person Conducting a Business or Undertaking (PCBU) under the model Australian legislation.
The obligation to notify may even occur if no-one is injured in certain circumstances.
Legislative Framework
The Work Health & Safety Act 2011 (WHS Act) and Work Health & Safety Regulations 2011 (WHS Regulations) have been adopted in most of the Australian states and territories. Currently, Victoria is the only state that has still not adopted the model legislation and needs to be considered individually.
The object of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces.
What is a ‘Notifiable Incident’?
Under section 35 of the WHS Act, a notifiable incident is defined as:
Under section 36 of the WHS Act, a serious injury or illness of a person is one which requires the person to have certain types of treatment, including:
Under section 37 of the WHS Act, a dangerous incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to:
Failure to Notify
Penalties can apply in situations where the Safety Regulator is not notified of a notifiable incident. The maximum penalty for such an offence is determined by the maximum number of penalty units and the value of a penalty unit in each State, for example, in NSW the maximum penalty unit for a failure to notify for an individual is 115 penalty units (115 x $110) or $12,650 and for a company is 575 penalty units (575 x $110) or $63,250.
In a recent case, a Queensland company, Cattletrans Pty Ltd trading as Robertson’s Transport, was fined $5,000 plus $1,100 in costs after pleading guilty to breaching section 38 of the Queensland WHS Act (s38 – duty to notify of notifiable incidents).
The matter was held at Toowoomba Magistrates Court where it was heard that in March 2019, one of Cattletrans’ workers who had transported a broken-down vehicle on a tilt tray truck to a site for repairs had fallen from the tray, striking his head on the ground below. The worker was subsequently hospitalised for seven days with a fractured skull.
The workers colleague who was also present had reported the incident to the Cattletrans’ director on the day that it occurred, but Workplace Health and Safety Queensland did not become aware of the incident until June 2019 when it was contacted by the injured worker.
Magistrate Ryan held that Cattletrans had not been aware of its notification’s obligations, with its director being an older man who “could be considered ‘old-school’”. Magistrate Ryan indicated that while ignorance of the law was not an excuse for a breach, it could be considered to an extent when determining the appropriate fine.
Seek Urgent Advice
Businesses are strongly encouraged to seek urgent advice in the event of a work-related incident or injury and if the matter is reportable the Regulator. Generally once reported, if serious, the Regulator may commence an investigation.
***Assisted by Grace Tully***
Book now with Antonia Tahan from the Workplace Law Team for an initial free consultation.
‘[R]egrettably and with gritted teeth’ ACT Supreme Court Chief Justice, Lucy McCallum, vacated the trial set for 27 June 2022, in relation to the sexual assault allegations raised by Brittany Higgins against former colleague and liberal party staffer, Bruce Lehrmann (the Higgins Trial).
After a previous failed attempt to seek a pause of the litigation on account of the pervasive publicity surrounding the Higgins Trial, Lehrmann’s legal representatives were successful in their recent application. Lehrmann’s lawyers argued that the speech given by Lisa Wilkinson at the 19 June 2022 Logies Ceremony (Logies Speech), and comments broadcast on breakfast radio by Amanda Keller and Brendan Jones (Radio Broadcast) the following day clearly constituted contempt of court and were ‘extraordinary’ in nature.
Although the prosecution denied this and submitted that Wilkinson received the award for ‘journalistic skill’ rather than for ‘truth of the story’, and therefore the Logies Speech could not be as influential as asserted by the defence, Justice McCallum agreed with Lehrmann’s lawyers’ position. In particular, her Honour considered that the content of the Logies Speech followed receipt of a ‘glittering award for good journalism’. Accordingly, Justice McCallum was not satisfied that her Honour could successfully direct a jury to disregard media reporting surrounding the Logies Speech and Radio Broadcast (and by extension, the Higgins Trial).
Let’s discuss how this happened, and what it means to be in contempt of Court.
The law of contempt may broadly be described as a mechanism to prevent misconduct or misbehaviour in respect of Court proceedings. Contempt is considered as possessing three fundamental objectives – to provide a fair trial, ensure compliance with the court’s orders and generally protect the administration of justice.[1] Examples of contempt include: refusing to comply with lawful directions issued by a judge, failing to comply with subpoenas or notices to produce issued within court proceedings, or refusing to take an oath or make an affirmation as a witness called to give evidence.
The Logies Speech and Radio Broadcast are forms of contempt by publication, or more specifically, sub judice contempt. Sub judice contempt occurs where material has been published which has the potential to prejudice legal proceedings. In particular, the publication may serve to improperly influence a jury or witness, thereby preventing a fair trial.
In that way, we can see how sub judice contempt has the tendency to interfere with the administration of justice.
Media reports and public comments which are a ‘fair and accurate reporting of proceedings’,[2] or may be considered as being within the public interest will not,[3] however, constitute sub judice contempt.
Inherent complexities in the way the Court can enforce sub judice contempt has arisen with the advent of modern technology and an increasing social media presence. Due to the evolving manner in which community members consume news and media, there is a fine balance to be struck between public interest and the proper administration of justice. Accordingly, there are concerns that jurors may now access and disseminate information on an almost-unmanageable scale just by looking at their smartphones. Further, journalists are facing pressure to continuously publish material whilst maintaining their integrity and legal obligations, which of course include avoiding become embroiled in a contempt application. It is unsurprising then, that sub judice contempt has been at the centre of recent discourse.
What are the implications for the parties involved?
Her Honour found that the Logies Speech and Radio Broadcast (and the media attention surrounding each event) had an inexcusable impact on the parties involved in the Higgins Trial. It is uncertain at this stage whether penalties may be pursued against the relevant journalists.
Wilkinson, and Channel 10 more broadly, have indicated an intention to provide an undertaking to the Court to refrain from publishing commentary in respect of any element of the Higgins Trial. This may temper the Court’s desire to impose any statutory penalties on those parties involved.
Despite the defence seeking that the Higgins Trial be re-listed for hearing on a date in 2023 to ensure the ‘bushfire’ of controversy surrounding the matter has ceased ‘burning’, Justice McCallum has set down the hearing for a four-to-six-week period commencing 4 October 2022. Hopefully there will not be any cause to delaying the hearing further and there will be no further obstruction to the administration of justice.
[1] Justice Whealy in “Contempt: some contemporary thoughts” (2008) 8 TJR 441.
[2] John Fairfax Publications P/L v District Court of NSW (2004) 61 NSWLR 334 at [20] per Spigelman CJ.
[3] Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at [26] per Mason CJ.
On 22 June 2022 the Assistant Treasurer Jim Chalmers MP announced the Federal Government would retroactively amend current legislation to exclude crypto assets from being recognised as a foreign currency, in light of El Salvador and the Central African Republic recognising Bitcoin as legal Tender.
The Government confirmed capital gains tax (CGT) will continue to apply to crypto assets held as investments and will backdate legislation to 1 July 2021 to avoid any ambiguity for the taxpayer.
In September of 2021 the government of El Salvador became the first government to recognise Bitcoin as legal tender and in April of 2022, the Central African Republic followed suit.
Without further regulatory and legislative guidance to govern cryptocurrency in Australia and globally, cryptocurrency remains a rapidly evolving asset. It’s important to stay up to date with the latest changes related to cryptocurrency by seeking advice from specialists. Chamberlains Cryptocurrency team provides taxation and regulatory advice to investors, projects, traders, miners and crypto adjacent businesses.
With sweeping changes to the Employment space in full force, is your enterprise prepared for the revamped Superannuation Guarantee (SG) regime effective from 1 July 2022?
What changes do you need to be across as the new financial year commences?
Superannuation Guarantee Rate Increase
The SG rate is set to increase from 10% to 10.5% on 1 July 2022, with further increases of 0.5% per year from 1 July 2023, until it reaches 12% from 1 July 2025 onwards. Employers must update their payroll settings to reflect the 0.5% increase, however the financial impact on the employee will depend on the terms of their existing and new salary packages.
The effect of the increase on salary packages needs to be carefully considered to determine whether the additional 0.5% SG contribution will be added to an employee’s existing package or incorporated into the existing salary package amount (e.g. salary including super). You should review your employment contracts to consider how this applies to your employees. If the SG rate increase results in a reduction of an employee’s take home pay, employers will also need to consider whether they are complying with relevant Modern Awards and its revised pay rates.
Elimination of Monthly Threshold
Previously, employers were not obliged to pay Superannuation for employees earning less than $450 per month over eighteen (18) years of age. Moving forward, this minimum threshold will be repealed. As such, employers are required to make SG contributions for all classes of employees, including casual and part-time, irrespective of their income.
It is important to note that employees under eighteen (18) years of age are entitled to SG contributions if they work more than thirty (30) hours per week.
The elimination of this threshold will assist three percent (3%) of the workforce, primarily comprised of lower income female earners.
Compliance
In the aftermath of Covid-19, the Australian Taxation Office (ATO) has indicated that a firmer approach to compliance will be exercised, particularly to employers failing to satisfy their SG obligations.
Whether it be failure to lodge an annual SGC statement or comply with an audit, the ATO has the power to pierce the corporate veil and impute personal liability on a company director for breach of the Superannuation Guarantee (Administration) Act 1992 (Cth).
For more information on how company directors may be held personally liable for corporate breaches, read our article here.
Next Steps
Don’t fall into the trap of underpayment and contact Chamberlains Workplace Law Team to understand your obligations, review and amend your contracts to reflect these changes and maximise compliance. Don’t wait until the ATO is knocking on your door and contact us to get your house-keeping sorted today!