Kamal Farouque is a Principal Lawyer in Maurice Blackburn's Employment practice with extensive experience in employment, discrimination and workplace law. If the matter canât be resolved, the employee can refer it to a trial; however, most discrimination complaints are resolved through conciliation before they reach court. Upon smelling smoke, she returned to the hot plate only to find “full blown flames”. Visit our Resource Centre for the latest legal news and insights related to COVID-19. a medical certificate or statutory declaration) that an illness or injury renders them unfit for work; In this instance, your employer retains the right to request a medical certificate. Create a written agreement on how to recoup the overpayment amount. The employer would have to sue for damages and the employee does not owe anything until there is a damages award or settlement. 8.5 Can an employer control an employeeâs use of social media in or outside the workplace? Employers may also pursue dismissal with cause in such cases, but must be careful to ensure first that it had â¦ Redundancies are never easy. Note that this does not allow the employer to keep your unpaid salary. Most injured workers are likely to file a claim for workersâ compensation benefits. If our view is that the redundancy is not genuine, the next step is to determine the real motivation. Employees can be liable for civil penalties and fines for breaches of the Corporations Act 2001. In serious circumstances, you might encounter an employee who steals from the business or is intimidating and threatening your other staff. employees are not generally held liable for ordinary negligence or carelessness in the performance of their duties; the imposition of liability in such a case would be unjust and/or unfair; an employer accepts the risk of employee fallibility and takes that into account in the costs of doing business, supervising the employee and insuring the enterprise. 28th July 2020. There are two main reasons why people seek legal advice about redundancies: When assessing a client’s circumstances, an employment lawyer has three main considerations: Here we consider the selection criteria for redundancies, for example, an employer might say it’s based on workplace performance and skills mix. Our lawyer guides you through this important process. An employer has a right at common law to issue their employees with a lawful and reasonable directive, which employees are obligated to obey. What reason has the employer given for their selection? A Suit to Recover Damages Payable to a Third Party It is settled law that employers are vicariously responsible for the harm caused by an employee in the performance of the employeeâs dutiesâ¦ For example, although such an employee is entitled to compete following employment, in doing so, he/she must not do so unfairly. Provided the status with the employer was senior enough, a court will enforce these obligations by way of requiring the departed employee to disgorge the profits earned from the improper activity. The relevant sections are designed to prevent employees, and others, using their position or information obtained by reason of their special position to the detriment of the corporate employer or to the employeeâs advantage. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on. The inability to recover damages in negligence does not preclude the employer from alleging cause for dismissal in an appropriate case. Really what your claim would be is for misconduct that results in damage to the business. Notwithstanding this, the courts reasoned that the obligation to provide reasonable notice to terminate the relationship is a mutual one which, in the case of employee resignation, should be sufficient to allow the employer reasonable time to find a replacement. When processed incorrectly, unfairly or unlawfully, they’re downright rotten. It is equally possible for an employee to breach the terms of the employment contract, both express and implied, for which the employer can sue the employee for any losses flowing as a result of that breach. Even absent a contractual or statutory term requiring an employee to provide a specific period of notice of resignation, courts have indicated a willingness to award damages to an employer where, in light of the position the employee held, insufficient notice of resignation was provided. Stress can occur when an employee has a low amount of control over the high demands an employer may place upon them. The case also demonstrates that a repudiation by an employee does not automatically terminate their employment contract and can have significant ramifications for the employee. Difficulties can arise where an employer wants to stop a former employee from conducting or working in a business in competition to their own. In an interesting twist, an employee in the process of suing his former employer has found himself the recipient of a counter claim for alleged misleading and deceptive representations made in applying for his job. An exception to this is if the employee displayed serious or wilful misconduct. © Copyright 2020 Maurice Blackburn. Our executive employment lawyers can help you to successfully resolve an employment dispute, protecting your professional reputation and financial stability. The sad truth is many Australians are injured at work each and every day and if everyone was able to sue their employer the court system would be choked by workplace injuries and as a matter of policy employers should not really be sued for minor injuries. Emily Anne Maclean worked in a farmer’s market. Unlawful: If it’s considered unlawful (e.g. Sometimes people won’t seek reinstatement because their relationship with the employer has deteriorated. They accept that their redundancy is genuine, but they wish to negotiate their payout and exit. In order to have a successful case against your employer when an employee acted in a manner that led to your emotional distress, you must prove the following: The employer needs to comply with their relevant awards and enterprise agreements. Kamal is well recognised as an effective employment lawyer. If the employeeâs manager provides a false reference that hurts the employeeâs chances of getting a job or damages the employeeâs reputation, the employee may sue for defamation. Still, there may come a time where youâll have to deal with a workplace injury. Employees have certain rights and entitlements in their course of employment. A vulnerable employee may be someone who requires workplace adjustments or someone who's made a workers' compensation claim. Businesses might complain that nothing is off limits, but the fact of the matter is that employees can sue because their employee rights have been violated. Other times they want their job back. Stress in the workplace may come from an isolated incident or a few stressful events. The law takes into account a certain level of negligence from employees. We are Australia's leading social justice law firm, fighting for the rights of everyday Australians. For example, in Thompson v IGT (Australia)  FCA 994, the Federal Court held that it was reasonable for an employer to direct an employee to attend a psychiatric assessment to determine whether the employee was fit to perform his duties and whether he could do so safely. Read more here. This helps to determine if there’s a link between vulnerability and redundancy. He was one of the select few Melbourne employment lawyers recommended by Doyle’s Guide as a preeminent lawyer in his field in 2019 as well as being part of the only first tier law firm for employee & trade union representation in Victoria in 2018. Being proactive and seeking financial advice can make your future secure and stress-free. Car Dealer Add-On Insurance class actions, Commonwealth Bank of Australia class action, Combined Insurance sickness and accident policies, Aboriginal and Torres Strait Islander justice, Challenges to corporate and government power, Depression and discrimination: a case study, Why end of year parties may lead to dismissing an employee, More than just a damaged ego: defamation in the current climate. If you’re concerned that you may be a candidate for redundancy, get early legal advice to understand your rights and make sure you’re treated fairly and lawfully. Does the employee have a vulnerability that could potentially make them a target? The answer, unsurprisingly, is yes, although it is more difficult for an employer to sue an employee than vice versa. From Rebel Wilson to Joe Hockey and Geoffrey Rush, the past few years have been dotted with high profile Australians making claims for damages to their reputation. Once filed, the employer will respond. As an employer, your first priority is to provide a safe working environment. The question then becomes whether the employer can recover the damages it paid to the third party from the negligent employee. Doing so is considered unfair and a breach of this obligation of fidelity. A contract is a contract, and if someone breaches it, they can be sued. This is valuable information. Hopefully you are no longer working for the company as this will certainly not have a positive impact your relationship with this employer. In dismissing this claim, the Court concluded: Accordingly, although it is clearly reasonable for an employer to expect its employees to exercise reasonable care in the performance of their duties, it will only be where the degree of fault by the employee goes beyond mere negligence, that a claim for damages will have any chance of success. It is quite common for employers to require senior employees to execute covenants which prevent or restrict certain activities. As an employer, you may face situations where employees are difficult to manage. discrimination based on gender or disability), we’ll look to discrimination law and general protections under the. In a fairly recent case, an Ontario court held that the two weeks’ notice given by a group of employees who were resigning to pursue a competitive venture was inadequate, holding that given the seniority of their positions, they ought to have provided ten months’ prior notice. 5th March 2019. The answer is no. Once these assessments have been made, an employment lawyer will form a view as to whether the redundancy is genuine or unfair/unlawful. The desired outcome can be either reinstatement or compensation, depending on the employee’s priorities. Fortunately most matters are resolved through conciliation. An employee is paid by the employers as he manages to perform his tasks to the best of his ability and gives what is expected of him to the firm. 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