Workplace bullying orders
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The Fair Work Commission (FWC) made formal ‘anti bullying’ orders in a case in August 2015. Very few formal orders have been made since the ‘anti bullying’ provisions were added to the Fair Work Act in 2015.
The bullying conduct (which the employer admitted at the FWC) had occurred between a property manager and other employees in a real estate business. The alleged conduct included swearing and other inappropriate language, physical intimidation, and threats of violence. Before the matter came to the FWC, the employer had investigated the complaints and put in place arrangements to move the manager to a related business. The employer opposed the application for orders on the basis that those arrangements made the workplace safe for the complainants. Read the rest of this entry »
Casuals and long service leave
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
It is generally understood that casual employees – because they are paid a “loading” in their hourly rate of pay – do not have an entitlement to annual leave and are not entitled to sick pay if they are unable to work. Less well understood is the issue of long service leave (‘LSL’) and casual workers.
LSL in Australia is governed by State based legislation. It varies from State to State although the various State Acts are broadly consistent. In some circumstances, casual employees can claim LSL.
In New South Wales the Long Service Leave Act provides that, subject to some exceptions, “every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer”. For the purpose of the Act, ‘service’ is defined as “continuous service, whether on a permanent, casual, part time or any other basis, under one or more contracts of employment”. The Act then provides for a number of situations in which service is “deemed” to be continuous for LSL purposes. Read the rest of this entry »
Solicitors’ professional responsibilities
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Clients sometimes want their solicitor to attend a meeting that is intended to resolve a dispute. On occasion, clients may want their solicitor to interview two or more potential witnesses concurrently, on the basis that the witnesses can each provide “parts” of a story. Clients often do not understand the risks, both to them and the solicitor, of doing so.
In a building case in 2014, these risks were highlighted. There was dispute between a developer and various subcontractors concerning a subdivision. The director of the development company was also its solicitor. He was also the principal witness on behalf of the company about issues that were in dispute. Proceedings were commenced and two of the subcontractors settled claims against them. The solicitor interviewed those individuals and prepared affidavits by them in support of his company’s claim against the remaining defendants. The case was heard and determined by the Consumer Trader and Tenancy Tribunal. The development company lost and then appealed to the Court of Appeal. The appeal was dismissed. Read the rest of this entry »