When is reinstatement appropriate after dismissal?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Even where the dismissal of a worker is found to be unfair, in the vast majority of cases the remedy granted is compensation. In many cases neither party wishes to resume an employment relationship. Often, it is said that trust and confidence has broken down such that resuming the relationship in not achievable. The Full Bench recently had to consider the factors relevant to whether, or not, reinstatement was an appropriate remedy: Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198.
In this case Mr Nguyen and Mr Le had been dismissed as teachers in a Vietnamese school. The dismissals were unfair (this finding was based in part on a concession by the school that this was the case). The FWC awarded compensation (only). The teachers appealed, seeking an order that they be reinstated. Read the rest of this entry »
New risks for business – unfair contracts
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
Under the Australian Consumer Law (previously the Trade Practices Act) there has long been capacity to set aside a “consumer contract” if it was unfair. Broadly, consumer contracts are made with individuals; and relate to goods or services for personal or domestic use.
Historically, contracts between companies, even if they related to goods or services for domestic use, were not subject to these provisions.
The Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth) will change the position. It introduces a new concept – “small business contracts”. The category covers ‘business to business’ contracts which involve a ‘small business’ (a business or company employing less than 20 workers). If a contract falls within the definition, it is capable of being set aside if it is ‘unfair’.
What is Probate and is it needed when I die?
by Lana Black
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
Probate is an order of the Supreme Court formally appointing an executor under a will and authorising that person to administer the estate of a deceased person.
In order for Probate to be granted, the executor named in the Will of a deceased person must apply to the Supreme Court in NSW. This application requires the executor to prove a number of things including that the deceased person is deceased, the Will is the last will of the deceased person and the executor is the executor named in the Will. The executor must also provide additional details such as details of the beneficiaries of the Estate and the assets of the Estate. Read the rest of this entry »
Planning for a peaceful end
Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
If you have been watching television or reading the newspapers lately you may have heard discussions about the fear of a prolonged but meaningless life. Your family members might have echoed this sentiment: “switch me off if I am just a vegetable, I don’t want to linger on for the sake of it”. How, though, does this happen legally? You cannot make your wishes known if you have already fallen into a vegetative state.
Planning for the future is the best way to deal with the possibility. A legal document in which you appoint a family member as your guardian to speak on your behalf coupled with a direction to the guardian of the things which matter most to you will make sure your wishes are known. Doctors will then understand what sort of person you are and will be able to act on decisions made for you by a guardian who understands your wishes. There are a number of resources to use to help you think about these issues and as part of the process of appointing a guardian we can help you locate and use these resources.
If you think you would like some help making these arrangements speak to us at Mullane & Lindsay.
Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.
Settlement negotiations – be careful what you wish for
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The Supreme Court recently dealt with a dispute about whether a plaintiff had made an offer that was capable of being accepted.
The relevant discussion occurred between the solicitors for the plaintiff and defendant in a “slip and fall” case. The defendant had made an offer, through his solicitor, to settle the case for $50,000.00. In a later telephone call the plaintiff’s solicitor said words to the effect of “$50,000.00 might do it for [the plaintiff], but another $20,000.00 would help out me and counsel. Otherwise, there is not much left for our fees”.
The defendant’s solicitor interpreted those words as an offer to settle for $70,000.00. After taking instructions he ‘accepted’ the offer; but the plaintiff’s solicitor disputed having made an ‘offer’ to settle. The defendant then issued a Summons, presumably seeking orders ‘forcing’ the plaintiff to settle for $70,000.00. Read the rest of this entry »
Another Family Law Accredited Specialist at Mullane & Lindsay
Ashley Stevens is a Family Law Accredited Specialist at Mullane & Lindsay in Newcastle and practises exclusively in Family, Relationship and Matrimonial Law.
The Law Society of NSW operates the Specialist Accreditation Scheme to help the general public identify solicitors who have demonstrated proficiency in a particular area of law. Before gaining accreditation a solicitor must have:
- practised full-time for at least five years
- worked in their area of speciality for at least three years, and
- passed rigorous assessments in communication, problem solving, client relations and the law.