Apr 8, 2022 | Employment Law
The expectation to maintain professionalism as an employee is a crucial responsibility. In the age of social media, the need to act in accordance with company policies and preserve company reputation has evolved into an assumed etiquette. The Fair Work Commission has seen an increase in employment termination due to the improper use of social media in the workplace. As such, it is crucial that employees understand how their behaviour on social media may detrimentally impact their employment contract.
Why is it important to monitor your social media posts as an employee?
It is expected that employers and employees practice appropriate etiquette on social media in order to uphold company standards.
In NSW, employers are bound by ethical codes contained within the Fair Work Act (No 28) 2009 (Cth) (‘Fair Work Act’). These codes impart values of “fairness” to prevent employers from acting in discriminatory ways. The Fair Work Act serves to protect an employee’s workplace rights. It also enforces provisions that support employees in unfair dismissal cases.
It is expected that employees act in accordance with company policies when maintaining an online presence. When an employee’s social media presence reflects negatively on their company’s reputation, their employer may terminate their contract of employment.
Folau v Rugby Australia: Codes of conduct and social media
In 2019, Rugby player, Israel Folau was fired after Rugby Australia flagged Folau’s Instagram posts for homophobia. His contract was terminated because he breached the company’s code of conduct which prohibited players from partaking in discriminatory behaviour whilst employed.
Folau argued that he was unfairly dismissed because he was only wanting to express his Christian faith on his personal social media account. He brought the dispute to the Federal Circuit Court of NSW and claimed that his employment was terminated for a prohibited reason (i.e. religion) under s772 of the Fair Work Act. Folau argued that he had a right to freedom of expression on his own social media profile. However, Rugby Australia disputed this claim by asserting that employers have the capacity to regulate an employee’s behaviour both publicly and privately to ensure that they adhere to the company’s code of conduct.
Rugby Australia argued that Folau’s Instagram posts breached his employment contract and therefore resulted in his termination. His case demonstrates how employees can jeopardise their employment if their social media posts are against the ethical codes of company policy. To better understand the consequences of making defamatory or discriminatory social media posts, please refer to our blog for more information.
How should employees behave on social media?
When posting online, it is important to be aware of the following:
- It is your responsibility to monitor and regulate your behaviour on social media platforms. Be sure to familiarise yourself with company policies and code of conduct so that you are not at risk of breaching codes of conduct.
- Never disclose personal or propriety information belonging to an employer. Always seek permission before posting on behalf of another person.
- To avoid your personal information from being revealed to your current or potential employer, check the privacy settings of your online profiles. Keep personal accounts, devices and internet searches completely separate to your work account.
- Be aware of the consequences of posting inappropriate material. Your employer can use your social media posts to take disciplinary action against you.
How can Etheringtons Solicitors help?
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further clarification on employment law, or believe you may have behaved inappropriately on social media, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Apr 8, 2022 | Employment Law
It is not uncommon for people to meet their partner in the workplace or employ their spouse or partner in their small business to provide additional support and reduce labour costs. Disputes may arise if your ex-partner starts causing problems in the workplace through improper behavior or dishonesty. In this blog, we review whether you can terminate your ex-partner’s employment and evaluate some considerations for the future.
Can I terminate my ex-partner’s employment?
You can terminate your ex-partner’s employment on the condition that the termination is lawful and would be for the same reasons as any other employee in your workplace, regardless of their relationship to you. There must a valid reason for their dismissal and this will vary depending on your individual circumstances.
If you wish to avoid having an unfair dismissal claim lodged with the Fair Work Commission against you, it is vitally important that the employment termination is:
- For a valid purpose
- Not harsh, unjust or unreasonable; and
- Not made for an unlawful
Meaning of Unlawful Termination
The Fair Work Act 2009 states that an employer must not terminate an employee’s employment for an unlawful reason. Simply disliking your ex-partner and no longer wishing to see them in the workplace is not a valid reason to dismiss them. Examples of ‘unlawful reasons’ include dismissals based on:
- Protected traits such as race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- Temporary absence from work because of illness or injury;
- Trade union membership or participation in trade union activities outside working hours;
- The filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; and
- Absence from work during maternity leave or other parental leave.
Valid Reasons for Dismissal
A lawful and valid reason for dismissal will vary and it is advised that you seek legal advice before terminating an employee. In most cases, you may have a valid reason to terminate employment if your ex-partner displays some of the following behavior:
- Inappropriate conduct such as harassment
- Creating conflict for clients or other employees
- Improper use of company funds
- Not abiding by workplace policies
Other considerations
If you are satisfied that a valid reason for dismissal exists, you must ensure that you provide adequate notice, an opportunity to respond, and the reasons for dismissal. You should consider providing ‘warnings’ or offer mediation conferences to your ex-partner before considering dismissal, as often their behaviour or performance may improve and you may be less likely to face an unfair dismissal claim.
You should also consider whether terminating your ex-partner’s employment may leave you vulnerable to a spousal maintenance claim. Spousal maintenance is where one partner provides financial support to the other partner upon the relationship breaking down. To learn more about spousal maintenance, see our blog here.
Contact Etheringtons Solicitors
Various employment and family law problems that stem from workplace relationships can lead to complicated legal repercussions. The team at Etheringtons solicitors are highly skilled in navigating both employment law and family law matters and are able to assist you every step of the way during your legal proceedings.
If you or someone you know needs help and would like to have a confidential no-obligation discussion, please call Etheringtons Solicitors on (02) 9963 9800 or send us a message via our contact form.
Apr 5, 2022 | Employment Law
The term ‘consumer’ carries with it broad connotation of individuals who purchase goods and services, usually for a relatively low sum. However, with the new Australian Consumer Laws (‘ACL’) set to take effect from 1 July 2021, the definition of a ‘consumer’ could affect a greater number of transactions which will be covered by the ACL consumer guarantees. In this blog, we provide an overview of the Australian Consumer Law (‘ACL’) and the changes set to take place this year.
What is the Australian Consumer Law?
The ACL is the primary area of law that regulates the sale of goods and services. The ACL applies nationally and in all States and Territories, and to all Australian businesses. The ACL is administered by the ACCC and state and territory consumer protection agencies and is enforced by all Australian courts and tribunals.
Under the ACL, products and services must meet strict requirements. For example, products must be safe, long lasting, lack faults, look acceptable, carry full ownership, be fit for purpose, match descriptions, have spare parts and repair facilities available and do everything someone would reasonably expect them to do. Likewise, services must be provided with acceptable skill and care or technical knowledge and taking all necessary steps to avoid loss and damage, be fit for purpose and be delivered within a reasonable time when there is no agreed end date.
The ACL provides consumers protection in the areas of:
- Unfair contract terms
- Consumer rights when buying goods and services
- Product safety
- Unsolicited consumer agreements covering door-to-door sales and telephone sales
- Lay-by agreements
What’s changing?
The ACL has previously defined a ‘consumer’ as someone who purchases goods or services for under $40,000 or the purchase of goods and services greater than $40,000 if they are acquired for personal, domestic or household use or consumption. However, the recent changes to the law will increase this threshold to capture all goods and services under $100,000.
The changes will also see the amendment of the definition of “consumer” under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
These changes come in response to a review conducted by Consumer Affairs Australia and New Zealand into the effectiveness of the ACL in protected the modern consumer. It found that inflation and the rising cost of goods and services meant that purchases that were previously covered by the ACL are no longer, leaving consumers unprotected.
In essence, this change in definition will operate to expand consumer protections afforded by the ACL to a greater number of consumers. Whilst this gives purchasers more rights and bargaining power, it increases the need of businesses to ensure that they are compliant with the new ACL requirements as more customers may be covered by its protections.
How do I prepare for these changes as a business?
These changes provide a good opportunity to assess your current goods or services and whether they are subject to the ACL. You should also conduct a thorough review of your current contracts, policies, terms and conditions and existing (and now new) obligations.
You should seek legal advice if you wish to find out more information about the changes, how they affect your business and to ensure your business is complying with its obligations under the ACL. The team at Etheringtons Solicitors are highly skilled in business law and are ready and willing to assist you with your enquiry. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles, please see our blog here.
Apr 2, 2022 | Employment Law, Information Technology Law
Workplace surveillance and email monitoring have become the norm in organisations across Australia. However, many employees still do not understand their obligations or their rights when it comes to the use of computer technology in the workplace. The tension between an employee’s privacy and any potential restraint of trade conditions or copyright issues continue to be a source of contention in employment law, causing confusion for both parties. This blog will provide an overview regarding the law surrounding privacy and workplace surveillance, however if you are affected by this issue it is important to seek out legal advice.
Workplace Surveillance
The Workplace Surveillance Act 2005 (NSW) provides that a policy must be in place for an employer to undertake workplace computer surveillance. Employees must be given notice of that policy. Commonly, employers include a notice of surveillance in a new employee’s contract. However, if employers are introducing computer surveillance into the workplace they must provide employees at least 14 days written notice.
Under the Act the notice must include:
- The kind of surveillance to be carried out (i.e. computer, camera or tracking surveillance)
- How the surveillance will be carried out
- When the surveillance will start
- Whether the surveillance will be continuous or intermittent; and
- Whether the surveillance will be for a specified limited period or ongoing.
The Privacy Act 1988
The Privacy Act 1988 (Cth) regulates the handling of personal information by government agencies and organisations. The Australian Privacy Principles (APP) are enshrined in this Act. Principle 12 states that if an APP entity (which includes Government agencies and private organisations) holds personal information about an individual, the entity must, on request, give the individual access to the information. It is worth noting that the Act itself does not distinctively cover surveillance in the workplace. The employee records exemption under this Act provides an exemption to adherence to the APP for employers in certain circumstances. This means that employers are allowed to collect and store employee’s personal information if it is directly related to the employee-employer relationship, or if it forms part of an employee record.
However, employers should not assume that all the information they hold that relates to an individual employee would constitute an employee record. For example, the Office of the Australian Information Commissioner (OAIC) have given the example of financial correspondence received into an employee’s work email account. Whilst an employee’s bank details may fall within the meaning of ‘employee record’, the specific emails and their contents that an employee receives from their financial institution that is sent to their work email account, may not necessarily be part of an ‘employee record’ as it may not relate to the employment of the employee. Whether or not the content of emails sent or received by an employee forms part of their ‘employee record’ will always depend on the circumstances and you should seek advice regarding your particular case.
How do I know if my employer can view emails sent from my company email address?
If an employer has given notice that workplace emails are or can be placed under surveillance, then it is quite likely that your employer can view emails sent from your company email address. Most organisations have privacy and workplace surveillance policies that stipulate when and why your emails might be viewed by an employer.
If you are disputing your right to access to your personal emails on your work email accounts, the OAIC may have the jurisdiction to hear your complaint if you are arguing that the emails fall out of the employee record exemption prescribed in the Privacy Act. However, as mentioned previously, this is determined on a case by case basis and the law surrounding this area remains somewhat ambiguous. If you are unsure, it is best to seek legal advice.
The team at Etheringtons Solicitors are skilled in employment law and are ready and willing to assist you with your enquiry. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles, please see our blog here.
Mar 30, 2022 | Employment Law
Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
In light of the most recent COVID-19 outbreak in Sydney, there is widespread discourse surrounding the vaccine rollout in Australia. Whilst the COVID-19 vaccination is currently voluntary, the NSW Government has recognised there may be future circumstances in which proof of vaccination is necessary; for example, border entry or intrastate travel. Further, many industries such as the aged care sector have begun considering mandatory COVID-19 vaccines for all staff in order to prevent further outbreaks in vulnerable communities. So it begs the question, can an employer force an employee to get vaccinated?
Can my employer enforce mandatory vaccinations?
Mandatory vaccination policies can be considered lawful and reasonable, based on industry-specific considerations. In an era before COVID-19, this was only ever contested with the annual flu vaccine. But now, it has become strongly encouraged for aged care workers to get the COVID-19 vaccination, and some workers are objecting.
Whilst the issue of mandatory COVID-19 vaccines remains undetermined at this stage, Courts have recognised the ability of employers to terminate employment for failure to comply with other mandatory vaccination programs.
Recent Case Studies
The Fair Work Commission recently held in Barber v Goodstart Early Learning [2021] FWC 2156 that breaching a childcare employer’s mandatory vaccination policy constituted grounds for fair dismissal. In this case, Barber objected to the vaccination due to a “sensitive immune system” and other medical grounds, but failed to obtain a medical certificate exempting her from requiring the vaccine. In determining that the mandatory vaccination policy was reasonable, the Fair Work Commission considered various factors including;
- Goodstart’s occupational health and safety obligations under the relevant legislation;
- Government advice encouraging vaccination;
- The unique risk to children who cannot get vaccinated due to their age;
- Whether the policy allowed for medical exemption; and
- Whether the cost of vaccination was covered by the employer.
This finding was based on the previous case of Arnold v Goodstart Early Learning [2020] FWC 6083, in which Ms Arnold pursued an unfair dismissal claim after being dismissed for failing to comply with the directive that all employees receive a flu vaccination. Ms Arnold’s objection was not based on medical reasons, but rather she relied on international human rights instruments to justify her refusal. The Fair Work Commission observed that Goodstart’s policy regarding vaccination was ‘lawful and reasonable in the context of its operations’ and was ‘necessary to ensure the company met its duty of care to the children in its care’.
Considerations for employers
Whilst the above cases illustrate that mandatory vaccination programs can be legal, this is dependent on the specific circumstances of the employee and their role. Generally, employers cannot introduce blanket mandatory vaccination programs unless there are genuine health or compliance justifications. In the context of COVID-19, it is important for employers to consider the concerns held by employees in relation to access to vaccines and potential side effects and allow employees to express their concerns where they exist to avoid feelings of discrimination.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of employment law matters, whether you are the employer or employee.
If you need further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Mar 24, 2022 | Employment Law, Wills and Estates
Superannuation is a large component of building long-term wealth and retirement planning. Self-managed super funds are becoming increasingly popular as the investment structure for those who prefer greater autonomy and control over how their funds are being invested and accumulated. However, whilst self-managed super funds can be effective for building wealth and minimising tax burdens, they must be properly executed and managed in order to protect you and your family’s interests. Etheringtons Solicitors have a team of experienced solicitors who can assist you in a range of wealth management matters in a strategic and compassionate manner.
What is a self-managed super fund?
A self-managed super fund (“SMSF”) is a private superannuation fund where the members are usually the trustees. Members of the SMSF run it for their benefit and are responsible for complying with the relevant laws. A SMSF can have up to four members, but it is quite common for there to be just one member.
A SMSF trustee is the person responsible for ensuring the SMSF is maintained for the purpose of providing retirement benefits. The trustee can be a company or an individual. For a single member SMSF, there must be two individual trustees, the other trustee must either be related to the member or be another person who is not an employer of the member.
What are benefits in establishing a self-managed super fund?
1. Control and Choice of Investment
The primary benefit of a SMSF is the control and choice you have over how the funds are invested. For example, SMSF’s can invest in commercial properties, term deposits, shares and derivatives. SMSF’s are recommended for small business owners as the fund can receive steady income from the SMSF when the business property owned by the SMSF is leased back to the business.
2. Tax Minimisation
SMSFs grant greater flexibility than other superannuation structures to minimise overall tax payments. If you are a SMSF trustee, you are entitled to the reduced superannuation tax rate. Provided the SMSF complies with legislation, your investment return would therefore be taxed at a maximum of 15% in Australia.
The tax-free benefits are highly attractive. Benefits received after the age of 60 and pension payments received from the fund are tax-free.
We highly recommend that you seek advice in relation to SMSFs as they may also be utilised for tax strategies around capital gains and franking credits.
3. Life Insurance
The following forms of personal insurance can be paid through a SMSF:
- Life Insurance;
- Total and Permanent Disability Insurance; and
- Income Protection Insurance.
Life policies are often held in SMSFs because the funding of premiums can become tax deductible if certain contributions are allocated to fund the premiums. The level of cover and insurance needs are unique to each individual. Professional advice must be sought prior to taking out a life insurance policy through a SMSF.
Whilst there are clear benefits to having a SMSF, there are important factors to consider when deciding if it is the appropriate wealth building strategy for you.
Important Considerations
1. Time and effort of managing a SMSF
SMSFs require the trustee to take responsibility for all investment decisions, unlike an industry or retail fund. A sound understanding of investment options and markets is required to be a trustee of an SMSF. Poor decisions will impact the assets of the fund and the retirement savings of its members.
Furthermore, trustees are responsible for ensuring that their fund complies with legislation. If the ATO rules that there has been a breach of these obligations, it may impose high penalties on trustees who will be personally liable.
2. Cost of running a SMSF
The costs of running a SMSF are fixed and therefore can be disadvantageous when the assets held within the SMSF are low in value. The costs reduce in proportion to the value of the fund, and it is advised that the fund should contain at least $250,000 worth of assets to ensure the costs of running the SMSF are worthwhile.
3. Estate Planning
The superannuation benefits of a SMSF are not assets that automatically fall within the ownership of a person’s estate upon their passing. Allocation of benefits is decided by the trustee unless written direction is provided. Without careful consideration and planning, your superannuation funds may not end up where you want them to after your death.
You may properly document where superannuation benefits are to be directed upon the death of a beneficiary through a binding death nomination. A binding death nomination must be renewed every 3 years while a death benefit agreement is permanent until revoked, unless it is a non-lapsing nomination.
Contact Etheringtons Solicitors
Wealth management and estate planning takes careful contemplation. If you or someone you know requires more information or needs advice in relation to self-managed super funds, please contact us on (02) 9963 9800 or via our contact form.
