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Employment Law: Strict time limits enforced for filing applications late

By Tara Holland

In recent Just Us News, Ted Besley, Special Counsel at Just Us Lawyers has successfully argued against an application for General Protections as the application was filled outside of the required 21 days.[1]  The case highlighted the importance of filing unlawful dismissal applications on time, and most importantly, the circumstances where an exception to the strict time limits might be granted.

In order to file a General Protections Application (“an application”) under Part 3 of the Fair Work Act 2009 (Cth), an employee who believes they have been unlawfully dismissed must lodge an application 21 days after the dismissal took place, not the day the dismissal took place.[2]

In Amani Rogers v Tursa Employment and Training Limited (“Rogers v Tursa”), Mr Ted Besley argued that filing an application one day late amounted to a breach of the time limits for filing an application.  It was noted, that the Commission does allow for a further period for an applicant if there are ‘exceptional circumstances’.[3]

The Applicant argued there were exceptional circumstances for her delay in filing the application, however, she could not provide a ‘credible reason’ for the whole of the period that the application was delayed. The Applicant claimed part of the reason she was delayed was she had been looking for work.  The Commission found that looking for work did not hinder her completing and lodging her application on time.[4]

It is well settled case law and restated in Rogers v Tursa that exceptional circumstances must be “out of the ordinary course, unusual, special or uncommon.[5]

There are five criteria for exceptional circumstances:

  • the reason for the delay;
  • any action taken by the person to the dispute the dismissal;
  • prejudice to the employer (including prejudice by the delay); and
  • the merits of the application: and;
  • fairness as between the person and the other person in a like position[6].

The Case for this test is Cheyne Leanne Nulty v Blue Star Pty Ltd[7] in which the full bench summerised the expression ‘exceptional circumstances’ as, ‘out of the ordinary course, or unusual, or special, or uncommon… Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered.’

What circumstances are ‘exceptional’:

  • a legal representative error;[8]
  • mental health (must provide relevant evidence) which directly affects capacity to make application;[9]
  • representative unable to access office computers during flooding in Brisbane from Cyclone Debbie.[10]

What are not ‘exceptional’ circumstances:

  • moving house and seeking advice on matter;[11]
  • applicant submitted lack of legal knowledge;[12]
  • unsure of dismissal date.[13]
  • Looking for work[14]

Please be advised that this article provides general information regarding General Protections and is not meant to be relied upon as advice, everyone’s case is different. If you require help with a legal matter please do not hesitate to contact Just Us Lawyers.

Further information regarding General Protections can be found at the Fair Work Commission

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute our team of employment experts will get you through the system, whatever side you are on.

[1]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314

[2] S366(1)(a) of the Fair Work Act 2009 (Cth)- lodgment does not include the day and accordingly the Acts Interpretation Act 1901(Cth) state times is expressed as to begin after the specified day, meaning the day after the dismissal.

[3] Fair Work Act 2009 (Cth)s366 (2), Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[4]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314[22].

[5]Amani Rogers v Tursa Employment and TrainingLimited [2017]FWC 4314, 34.

[6] Ibid in Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[7] [2010] FWA 6989 [13].

[8]Edwards v Tiger Airways Australia P/L t/a Tigerair [2017] FWC 4021 (9 August 2017);Kemp v Real Pet Food Company t/a VIP Petfoods (Aust.) P/L [2017] FWC 3898 (26 July 2017)

[9]Appeal by Shellum against decision of Ryan C of 4 May 2017 [[2017] FWC 2429] Re: Grill’d P/L t/a Grill’d Healthy Burgers

[10]Hanson v Blueprint Global P/L [2017] FWC 2660 (15 May 2017)

[11]Appeal by Ibrahim against decision of Roe C of 31 January 2017 [[2017] FWC 611] Re: I Sec Security t/a ISEC [2017] FWCFB 1379 (9 March 2017)

[12]Turner v Metropolitan Fire and Emergency Services Board [2016] FWC 8036 (30 November 2016)

[13]Solanki v M-Power Community Services Inc [2016] FWC 8126 (11 November 2016)

[14]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314


Death by Paperwork

Death by paperwork may be an amusing term to describe the settlement process in Queensland however in reality it is not a laughing matter.

If you do not love paperwork, deadlines and your free time or simply wish for a conveyance that is completed smoothly, it is highly recommended an experienced Conveyancer is employed for all property transactions.  Buying and selling is a major transaction, problems that may arise during settlement should be attended to with speed and accuracy.  Choosing to engage a Conveyancer will take the pressure down on a very stressful process.  It will allow you to thoroughly enjoy popping the champagne cork and celebrating your settlement.

 

WHAT IS A CONVEYANCER?

A Conveyancer is a legal professional who assists with property settlement and transfer of title. A Conveyancer acts as the client’s representative, and guides their clients to ensure all the necessary legal obligations are met within the relevant deadlines. It is a Conveyancer’s job to protect their clients’ rights and interests throughout the settlement process so the clients are not left open to risk and legal recourse.  Risk could include things like critical dates being missed or misinterpreted, giving the seller the right to terminate the contract and keeping the buyers deposit of thousands of dollars. Buyers can be left open to being sued for failure to meet obligations under the contract.

 

WHAT DOES A CONVEYANCER DO?

  • Provides guidance, advice and support relating to your property transaction, including buying, selling, updating a Title, transmitting property in estate matters.
  • Provides pre-contract advice regarding conditions that should be considered or included in the Contract of Sale.
  • Holds your deposit on trust in the firm’s Trust Account pending settlement.
  • Conducts searches on properties to ensure no hidden or concealed issues which may affect your use & enjoyment of the property or its sale price.
  • Prepares all required legal documentation to successfully effect settlement.
  • Calculates all relevant taxes and figures in preparation for settlement.
  • Liaises with financiers to ensure the necessary documents and other requirements are arranged for settlement.
  • Avoids legal pitfalls which might expose an untrained person to risks or mistakes costing time, money and STRESS!
  • Acts as a representative for you throughout the transaction, including liaising with other parties as necessary to take the pressure off you.

Thinking of buying and selling property –  we understand that it can be a complicated and confusing process for buyers and sellers alike. Our experienced Conveyancers will make the process efficient and less stressful for all parties involved – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today


Part 1. Social media: could a ‘rant’ on Facebook or photo on Instagram get you fired?

By Tara Holland

Over the past decade there has been an exponential rise in the use of social media to express oneself by comment and, more recently, by photos. The saturation of social media in everyday life has acted as a catalyst in employment cases because posting comments or photos on social media is not ‘private’ even if your settings are set to ‘private’.

As seen in recent news, ABC News article published on 7 August 2017, Facebook liking anti-government posts banned under new Public Service Policy, there is a growing climate of employee restriction in participating in any private email or social media criticism of your employer.

Fundamental questions are raised for employees and employer’s alike regarding rights and responsibilities when it comes to posting on social media. For an employer, what options do you have with regards to work related social media posts made by a current employee or social media posts by a prospective employee? As an employee or prospective employee, what rights do you have when faced with a potential issue over your social media account or posts?

In Part 1 we discuss the law around social media and current employees and in Part 2, we discuss the law in regard to potential employees and what an employer can do with social media posts/photos in respect of a potential employee.

The Law

Australia has firmly established industrial and employment laws which lay the groundwork for what rights and responsibilities are held respectively for the employer and employee. Most of those rights are contained in the Fair Work Act 2009 (Cth) (‘FWA’). [1]

Nothing in the FWA specifically mentions ‘social media’ in relation to the conduct and performance of an employee or potential employee. However, there is settled case law and the rights and duties in the FWA for employees and employers may apply to social media issues

Current Employee

The discipline that an employer carries out over an employee needs to have the appropriate weight and be consistent with action taken with other employees.  It is unlikely that an employer can summarily dismiss (sack on the spot) an employee based on a post on social media unless, it is threatening or comprises of serious misconduct.[2]  However, if there is a sufficient connection between the employee’s conduct and the employer, the posts can be linked to the workplace/staff member/employer, and they could be considered damaging to the company’s reputation, the employer may be able to lawfully dismiss that employee.

It should be noted that a post on social media between ‘friends’ has a wider audience than a conversation between a person and a colleague.  Furthermore, employees should be aware of ‘friends’ that may also be employed by the same employer.  A leading case of O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams the Good Guys[3] specifically highlights the fact that comments made in private, on a private computer are not necessarily ‘private’:

“…the fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before [the female colleague] was advised of what had occurred … the separation between home and work is now less pronounced than it once used to be”.

In other circumstances, a post may constitute enough to give a ‘warning’ for unsatisfactory performance, which has the potential to lead to dismissal. Before an employer can dismiss an employee, they must follow a specific procedure, which is  set out in s387 of the FWA and outlined below.

If the employee’s performance and behavior is constantly unsatisfactory and the employer has followed this criteria, the employee could lawfully be dismissed.

An employer must ensure that:

  • they have notified the employee of the warning and specified that dismissal would be a risk if there is no improvement;
  • the warning is related to the employee’s capacity or conduct;[4]
  • the employee has had an opportunity to respond in relation to the issue;
  • they have provided an opportunity for the employee to rectify the concern over a reasonable time period[5];
  • if the workplace has more than 15 people in employ, they employ aa Human Resources person and ensure a policy and procedure is in place.

If an employer does not follow the procedures above before dismissing an employee, the employer may have unlawfully dismissed the employee. This could result in the employee filing an application for unfair dismissal with the Fair Work Commission.[6]

In short, if you are an employee and you want to have a rant about work, don’t put it on social media. Just to be safe, perhaps find another way to vent, out loud, in private.

Please note that each case can vary depending on the circumstances and whether or not an employee is covered under the FWA. This article in not written as advice but as a basic summary around social media is the workplace.  

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute or unfair dismissal matter, our team of employment experts will get you through the system, whatever side you are on.


[1]The general protections provisions provide protections for national system employers and national system employees, organisations and other associations of national system employers or employees. It also provides protections in some circumstances for other persons, including employers and employees in State industrial relations systems, independent contractors and the persons who engage them (principals), State registered industrial associations, and other associations of State. Explanatory Memorandum to Fair Work Bill 2008 [1334].

[2]O’Keefe William Muir Pty Ltd t/as Good Guys

[3] [2011]FWA 5311

[4]Unfair Dismissal Bench book: Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237 [16]. See also Davis v Collinsville Coal Operations,

(AIRCFB, Harrison SDP, McCarthy SDP, Redmond C, 19 November 2004) PR953370 [49]; Fischer v Telstra

Corporation Limited (AIRCFB, Ross VP, Duncan DP, Redmond C, 1 March 1999) Print R2558 [29].

[5]Fastidia Pty Ltd v Goodwin (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280 [43]. Seealso Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 152 [58]‒[80].

[6] Some employees are not covered by unfair dismissal, see FWA s382.


Get to know Just Us…. Tara Holland

TARA HOLLAND – LEGAL ASSISTANT

 

What is the Motto I live by?

A movie line from Anne of Green Gables has always stuck with me, “tomorrow is always fresh with no mistakes in it” and every time I feel I have had a bad day I say this to myself.

 

What was your first job, and what did you like most about it?

I lived and worked at a resort on an island, we always had food, cocktails and beaches 365 days a year.

 

You’re happiest when?

 I am at the beach with my family.

 

What advice would you give to a 13 year old you?

 Trust yourself and your mother does know best lol

 

Why did you choose the career path that you are currently in?

 I grew up seeing people struggle with access to the law and their rights and I wanted to be able to help people in those situations.

 

Tell us three things most people don’t know about you…

 I was in a band. I did the make up (once) for a short film and, I used to skateboard.

 

What places have you lived in?

 Brisbane, Byron Bay, Auckland, Mackay, Townsville, Sydney, Darwin !

 

What did you want to be when growing up?

 A lawyer (surprise) or a singer.

 

Congratulations to Tara for her recent admission as a Lawyer in Queensland!  Tara is part of the Kelvin Grove branch team & presently she is assisting our senior solicitors in various areas including Employment Law and Resource & Indigenous Law.   If you have any queries  – call/email Just Us Lawyers or complete our enquiry form for a quote today.

 


If you’re selling for over $750k consider the FRCGW Tax

New ATO rules regarding Foreign Resident Capital Gains Withholding (FRCGW) Tax will apply to all properties with a price tag of $750,000 or more…

 

What is the Tax?

The Foreign Resident Capital Gains Withholding Tax (“the withholding tax”) was introduced in February 2016 and imposed a position obligation on purchasers of certain Australian assets to withhold 10% of the first element cost base of the asset (usually the purchase price) when acquired from a “foreign resident” vendor, and pay it directly to the Australian Taxation Office (ATO) prior to or upon settlement.

 

Which assets and transactions does the new regime apply to?

The new regime applies to transactions for the acquisition of certain Australian assets, with a market value of or over $2 million, including:

  • Taxable Australian Real Property (TARP) – land, buildings, residential and commercial property;
  • Lease premiums paid for the grant of a lease over real property in Australia;
  • Mining, quarrying or prospective rights;
  • Indirect Australian real property interests (interests in Australian entities whose majority assets consist of the above such property interests); and
  • Options or rights to acquire property.

 

What are the recent changes and how does this affect property buyers in Queensland?

  • Previously the withholding tax applied only to property transactions over $2 million it now applies to all properties with a price tag of $750,000 or more
  • These rules are aimed at foreign investors however it affects ALL Australians selling property for $750,000 or more
  • These rules apply to ALL property transactions including vacant land, residential property, commercial property, strata title and community title schemes
  • Buyers of properties over the threshold are required to withhold 12.5% of the purchase price at settlement, which they then have to pay to the ATO

 

How to avoid paying the Withholding Tax?

  • Following settlement you can apply for a tax credit for the amount that has been withheld by the ATO for the capital gains liability arising from the sale
  • To avoid having the 12.5% withheld you can apply for a clearance certificate from the ATO which can then be provided to the Buyer on or prior to settlement
  • If you are automatically assessed as an Australian Resident, a clearance certificate will be issued within a few days. This process can take longer for more complex applications

 

If you are a Foreign Resident/Investor?

The Buyer will withhold 12.5% of the purchase price if you are not an Australian Resident or Citizen. This amount will then be paid to the ATO. If a Seller receives a Variation Notice the buyer will retain the amount stated in the notice.

 

If you are are concerned as to the implications of FRCGW Tax on the sale or purchase of property in Queensland, do not hesitate to contact our Wilston office. If you, or someone else you know, needs help with this process, why not fill out an enquiry formwe would be happy to assist and advise over your rights and obligations with respect to your property and this tax.

Just Us Lawyers – for the best Conveyancing lawyers in Brisbane


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