Duties of Employees to their Employer
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Federal Court recently considered the duties owed by employees to employers. In Permission Corp v Pegasus, two employees of the applicant Permission Corp (PC) set up their own company Pegasus and, without disclosing their interest in it to PC, arranged for Pegasus to enter into contracts with PC. As a result Pegasus was paid significant sums. Further, Pegasus did not provide the service for which the payment was made. PC later became aware of the situation; obtained orders ‘freezing’ Pegasus’ bank accounts, and sued Pegasus and the employees (who, unsurprisingly, were dismissed) for damages. Read the rest of this entry »
Commission Arrangements In Employment Contracts
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Ms S was an employed real estate agent for around five years. She was remunerated partly by salary and partly on commission. Her commission was a percentage of the sales commission received by the agency. A dispute arose as to whether the agency was entitled to make specific deductions from the gross commission it received, before calculating the employee’s percentage.
Ms S said she was not told about these deductions before starting the employment; that when she later complained about them she was told “this is how its done here” and there was no change in conduct by the agency. The Court accepted this evidence, however it also held, on the evidence, that Ms S knew there would be at least some deductions made from gross commissions prior to accepting the original offer of employment; and that she certainly knew of the deductions when she renewed her Contract each year for the 5 subsequent years. Read the rest of this entry »
Commission Arrangement in Employment Contracts
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Ms S was an employed real estate agent for around five years. She was remunerated partly by salary and partly on commission. Her commission was a percentage of the sales commission received by the agency. A dispute arose as to whether the agency was entitled to make specific deductions from the gross commission it received, before calculating the employee’s percentage.
Ms S said she was not told about these deductions before starting the employment; that when she later complained about them she was told “this is how its done here” and there was no change in conduct by the agency. The Court accepted this evidence, however it also held, on the evidence, that Ms S knew there would be at least some deductions made from gross commissions prior to accepting the original offer of employment; and that she certainly knew of the deductions when she renewed her Contract each year for the 5 subsequent years. Read the rest of this entry »
When “PUBLIC” Information is Deemed Confidential
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Federal Court considered a dispute about the use of “confidential” information in the case of Prime Creative Media Pty Limited v Vrankovic in 2009.
Prime Creative Media (PCM) was a marketing/publishing company. The defendant was a former employee who, whilst working for PCM, became aware of information about PCM’s business contacts from sources such as business cards that were provided by contacts. Unsurprisingly, PCM also created its own database including details of clients and contacts. Read the rest of this entry »
Unfair Dismissal under the Fair Work Act for Economic Reasons
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
As almost everyone knows, the old ‘WorkChoices’ legislation was amended by the Rudd Labor Government. The Fair Work Act (2009) [FWA] now largely replaces it.
One significant change under the FWA relates to whether an employee can bring an unfair dismissal claim if he / she is dismissed for essentially economic reasons.
Under the Workplace Relations Act it was a defence to an unfair dismissal claim that the worker had been dismissed for “operational reasons”. This phrase was fairly broadly defined, and could include economic, technical, structural or other reasons relating to the business – even if those factors applied to only part of the employer’s business.
Under the FWA, this defence is now only available if a worker is terminated for reasons of “genuine redundancy”. The definition of genuine redundancy is substantially narrower than the old definition. An employer needs to show not only that it no longer requires the job to be performed by anyone; it must also be show that any award obligations requiring consultation about the proposed redundancy have been complied with. Further a redundancy may not be “genuine” if it can be shown the worker could have been internally re-deployed. Read the rest of this entry »