Click on your area of interest below to see how Smith Reid can help clients with employment law issues or disputes affecting:-
Employees
Individual Employers
Independent Contractors
Employed Company Directors
Smith Reid can assist if you need advice about matters including the following:-
•Employee's rights under a contract of employment;
•Employee's rights for compensation for dismissal whether pursuant to the law of contract or the Fair Work Act;
•Employee's rights and/or obligations under a terminated contract of employment regarding intellectual property or restrictions on future work;
•Workplace discrimination and victimisation of employees.
Regrettably we are unable to undertake these services on behalf of persons who are unable to self-fund. Typically, professional employees and directors are more comfortable with our services in this area (which are provided on an hourly rate basis).
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Workplace bullying, sexual harassment and discrimination.
Too many workers find themselves the victims of bullying, unfair treatment or discrimination at work. This can arise because they are members of ethnic, religious or sexual minorities; simply because someone takes a dislike towards them or for reasons that never become clear. As a result, they can find themselves subject to ridicule, practical 'jokes', unwanted advances, unfair work allocation, unjustified and/or unequally applied disciplinary action and even unfair termination of their employment.
None of this treatment is tolerated under NSW or Commonwealth law. The Anti-discrimination Act in NSW and various federal laws such as the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 prohibit such conduct. If you feel you have been the victim of such behaviour, Smith Reid can assist by advising of the legal means of redress open to you.
Can you make a claim for Unfair Dismissal under the Fair Work Act?
(N.B. Urgent Short Time Limits Apply)
To be eligible to make a claim for Unfair Dismissal under the Fair Work Act you must be an employee who was dismissed in circumstances where "the dismissal was harsh, unjust or unreasonable".
Employees must be earning less than the "threshold" amount of $113,800 to annum, not including superannuation, (indexed annually) (figure current as at 14 July 2010).
If you are employed by a small business (15 employees or less) you must have been employed for more than 12 months; and if you are employed by a large business (more than 15 employees) you must have been employed for more than 6 months to gain access to these remedies.
If your employment has been terminated for serious misconduct this requires special consideration (some allegations of misconduct by employers are not sufficiently serious or not firmly enough grounded in evidence to justify deprivation of the normal entitlements upon cessation of employment).
If you have been made redundant you may have other entitlements about which we can advise.
Disputes under the Fair Work Act regarding dismissal generally require urgent response.
The application for an Unfair Dismissal claim must be lodged with fourteen (14) days and time extensions are not freely available.
Can an Employee make a claim for breach of contract?
If you have a written contract with your employer there may be additional or alternative forms of legal redress available to you, whether your concern be dismissal or other workplace issues.
We are able to read and consider your contract and advise you about approaching your Employer to address the issue or to take legal action.
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"Prevention is the best cure" or "When the horse has bolted"
Problems are best anticipated by the implementation of proper contracts with employees. If this is done disputes can often be avoided.
On the other hand it is a fact of life that even with the clearest arrangements disputes over employment are sometimes unavoidable.
Smith Reid are able to help employers with employment law issues or disputes including:
•Advising Employers about employment contracts complying with necessary conditions,
•Advising Employers in relation to alternatives to employment contracts , for example independent contractor relationships;
•Advising Employers about disciplinary processes where misconduct has occurred, and forming strategies to avoid negative consequences to the Employer;
•Recovery of assets wilfully misappropriated or stolen by Employees, officers or directors;
•Advising Employers about contractual safeguards for their intellectual property and information;
•Advising Employers about lawful means of termination of employment
•Advising Employers about advice about entitlements for redundancies and termination.
Independent Contractors
There has been a trend in Australia in recent years to change employment arrangements of various kinds of worker to that of 'independent contractor'. This is often perceived a beneficial arrangement for both parties due to tax advantages for employees for example, (but can be problematic from the point of view of compliance with ATO guidelines); and reduced employment related costs for employers. However, sometimes these arrangements can be unfair and exploitive.
In some cases independent contractor arrangements can be reviewed under the Commonwealth Independent Contractors Act 2006 if they are unfair on the face of the agreement setting them out. In some other circumstances, contractor arrangements are deemed not to apply by relevant State or Commonwealth legislation; (particularly with regard to payroll tax and workers compensation for example). This means contractors can be 'deemed' employees for some purposes, which can mean that contractors may have more rights than they are aware of and employers may have more obligations than they realise. Some other laws, like anti-discrimination and occupational health and safety laws for example, apply equally to both employees and independent contractors working in a business.
Smith Reid can help both independent contractors and the principle contractors or businesses who seek to use them by advising:
•about what rights people have as independent contractors, including any right to review unfair arrangements;
•whether workers in particular arrangements are independent contractors for all purposes; and,
•helping to create workable and robust arrangements which properly recognise all parties rights and their obligations under the law
Employed Company Directors
Particularly in small business it is not uncommon for employees of a company to also own shares and even take positions upon the Board of Companies which employ them. There can be many advantages to giving people a 'stake' in their employer and in incorporation for businesses generally. However, this can present problems if relations within the company sour and it becomes necessary for some members to leave as employees and/or as officer of the company. This can be especially so if:
•some of the parties wish the business to continue with new or existing staff and others simply wish to end their involvement; or
•if there is a dispute about the assets of the company (like intellectual property) or
•debts which may have been personally guaranteed by company officers.
Smith Reid can assist, by advising on the proper creation of business arrangements including both employment contracts and shareholders agreements so as to ensure that they are workable and can handle unforseen future developments when companies are being set up. It can also assist by facilitating the termination of such arrangements and ensuring that each party receives their lawful due. If the employee / director is a key employee and the termination of the relationship means the 'whole substratum of the company' has failed, Smith Reid can also advise on options such as the winding up of the business if this is just and equitable.
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Contact our office on 9517 1988 to discuss how our Employment Law services could help you or fill out and submit the following form.