NEWS ALERT!

By | Employment Law | No Comments

In response to the anticipated issues employees will experience at work as a result of workplaces responding to COVID 19 virus, and to provide a quick service to employees for any urgent reason, Susan Moriarty & Associates is offering a telephone advice service with a Senior Practitioner. 

We understand how employees find themselves needing quick advice in a workplace crisis affecting their employment.  Whether you are being bullied, have a disciplinary matter ‘sprung’ on you or you have been given unreasonable time to respond to allegations of under performance, conduct at work or are the subject of a complaint made against you, we can help with urgent advice over the phone.  For a flat fee of $200.00 plus GST we are offering up to 45 minutes on the phone with a skilled employment advocate who can provide you with a quick assessment of your issue and give you confidential and strategic advice on your workplace matter, your workplace rights and how to respond to your employer.

For help call our office on (07) 3352 6782 and ask for our urgent need telephone consultation.   

Corona Virus (COVID-19) and your rights at work

By | Employment Law | No Comments

These times employees face are unprecedented in workplace relations.  How each case is handled will depend on all the circumstances of a workplace dispute or any other action taken by Employers to an employee issue.  Nonetheless, workers have rights and the various Tribunals that determine matters have an obligation to look at community expectations and not doggedly follow the rules of evidence and black & white law. 

The Tribunals are not Courts, nor should they be, as their history is framed in either human rights or conciliation and arbitration between employer and employees and/or their representatives.  The scales of justice and natural justice principles have never been so important for the world of work. 

At Susan Moriarty and Associates we understand this and while we are a law firm, we commit to these principles and what the ‘common person’ or ‘person in the street test’ would think of employer behaviour.  There are laws to follow but common sense should prevail.

Here are some tips and some challenges any employee might face during the Corona Virus response and our united efforts to curtail the dangerous impact this virus has on our populace and our health system.

1. Do I have to attend work if I am frightened of getting the virus or passing the virus on to another vulnerable person with whom I have regular contact?

Employers have an obligation under Work Health and Safety Laws to ensure the health of safety of their workforce.  You have an obligation too to ensure you don’t breach your own or a colleagues health and safety.  If you suspect infection, stay home, notify your employer in the usual or directed way and claim sick leave if you are a permanent employee.  If you don’t have enough sick leave you are able to access your annual leave or long service leave (if your entitlement is due).  Some employers require approval for you to access these entitlements, ask your employer.  If you are permanent part-time you have the same rights pro-rata.  If you are casual employee you can access without threat to your ongoing employment, unpaid sick leave.  We note the Federal Government is looking at implementing some assistance to casual employee so familiarise yourself with these.

There is a risk you can be deemed that you have abandoned your employment,  if you are just scared and don’t turn up for work and don’t contact your employer.  It is acceptable to refuse to work in an unsafe environment where your employer has done nothing to mitigate the spread of the virus by providing personal protective equipment (PPE), social distancing or any like strategies.  Be careful here and contact us or your union for advice.    

2. Can I lose my job if I have to self-isolate or take time off work for any reason related to contracting corona virus or if a family or household member contracts or is ill who you must care for.

No.  The anti-discrimination legislation and the state and federal industrial relations laws protect you from unlawful discrimination on the basis of a disability or medical condition or association with a person who has a disability or a medical condition.  The industrial relations laws protect you from adverse action being taken against you for an unlawful reason such as unlawful discrimination.  You have a right to access your personal leave to provide care and/or support for a family member or member of your household who is ill.  You industrial instrument, which might be an enterprise agreement as well as an Award, may provide better entitlements.

Ensure you apply for personal leave promptly and notify your employer.

3. Can I access all the usual remedies and lodge applications in the Tribunals for things like unfair or unlawful (wrongful) dismissal, discrimination or make adverse action claims not involving dismissal?

Yes,  but you should get advice from your union or us or contact the Fair Work Ombudsman or visit their site on www.fwo.gov.au.  There have been recent posts on the Fair Work Ombudsman Website regarding COVIT 19.  It is useful information that is readily available.  The Fair Work Ombudsman will not give legal advice or advice on the potential success of a matter that is lodged with the Fair Work Commission.  The Tribunals have arranged for matters to be conducted by teleconference, including hearings.

4. If I am a public servant what are my rights?

If you work in the public service as a professional or support employee in an office environment, your employer should be taking the same preventative measures of clear advice to workers and social distancing required by all employers under Work Health and Safety Laws.  Discrimination and General Protections laws against adverse action, equally apply to the public service and public sector.  If you are a frontline worker in health or other social or support services (eg; departmental public offices servicing the community, including Teachers, transport workers and other government services), you are entitled to work in a workplace free from discrimination and where work health and safety measures are taken to protect you from an unhealthy or unsafe workplace.

Remember, there will be expectations of common sense – what would a reasonable person expect and what do the laws say.  An employer cannot protect you from Corona Virus as a guarantee but they must take reasonable steps to ensure your workplaces are healthy and safe.  If you believe there is a risk in your workplace raise it, in the first instance, with your supervisor and if you are ignored or dismissed out of hand seek advice and help.  Frontline workers in the public service or sector have a right to expect that their employer will provide them with adequate personal protective equipment, you do not have to put yourself at risk.

Thank you for reading our first blog with tips for employees.  We will be keeping a close watch on issues and complaints that come our way and post further blogs to assist employees, alert employers and stakeholders of what is happening on the ground in workplaces. 

We hope humanity prevails and issues are few.

Testing Queensland’s Human Rights Act

By | Human Rights Law

Anytime new laws are set, cases will be tested, allowing the judicial system to interpret the laws according to its purpose and motive behind the change.  Queensland’s new Human Rights Act 2019 is such a piece of legislation, newly introduced to the Australian legal system, and now special counsel Benedict Coyne with his team at Susan Moriarty & Associates will advocate these cases on behalf of people fighting for various human rights issues.  

The recent case of the “Minister for barbecues” argues such issues about a person’s right to voice concerns and protest for causes they are passionate about.  Prosecutors have been given time to create a case against the “Minister for barbecues” while our advocates work on the defense, protecting Mr. Lawrie’s rights.  

“Outside court, Benedict Coyne SC said the case was about the fundamental right to protest and provisions in Queensland’s new Human Rights Act, which came into force on January 1.

“The laws need to be interpreted in a way that is compatible with the Human Rights Act, particularly the right to peaceful assembly and freedom of association, ” Mr Coyne said.

Magistrate Suzette Coates told the court, “This is quite a significant issue”.

For further details read the ABC New’s article, by Jessica van Vonderen, the ‘Extinction Rebellion climate protester testing Human Rights Act on public nuisance charge’.

Image from Human Rights Law Centre

Landmark Appeal win for a sexual harassment victim after waiting 6 years for judgment!

By | Discrimination Law

After experiencing sexual harassment over 11 years ago, Lilo Von Schoeler (Lilo) can finally say that justice has been served in a land mark decision handed down by the Full Court of the Federal Circuit Court in the matter of Von Schoeler v Allen Taylor & Company Ltd Trading as Boral Timber & Ors (Federal Circuit Court of Australia), BRG 893 of 2011.

In 2011, Lilo filed her claim for sexual harassment, sex discrimination and victimisation against Allen Taylor & Company Ltd trading as Boral Timber, a subsidiary of Boral Limited, and two of its employees, Timothy Hey and John Urquart. The Judge at first instance found that Lilo had been sexually harassed however did not find Boral Timber vicariously liable for their employee’s conduct and dismissed her other claims outright.

In bizarre circumstances, that still remain unexplained, the judgement was not provided to any of the parties until November 2018. The parties were told by the Judge’s Associate that the reasons for judgement had been released in April 2015 but due to an ‘administrative oversight’ the judgment had not been sent to the parties.

Susan Moriarty & Associates filed an appeal on ten grounds, including one which alleged that the delay was of such a magnitude and so inexplicable that Lilo had been denied justice and another which asserted that Lilo’s employer, Boral, were vicariously liable for their employee’s conduct.

In a scathing judgement at the final paragraph of the decision, their honours stated:

It should finally be noted that the delay on the part of the primary judge in delivering his judgment has—regrettably—brought the administration of justice into disrepute.

The full court upheld Lilo’s appeal, declaring Boral was vicariously liable for the sexual harassment, set aside the primary judge’s costs order against her, ordered Boral to pay Lilo’s appeal costs and remitted the issue of victimisation, sex discrimination and assessment of damages to a different judge in the Federal Circuit Court.

Lilo described to her legal team at Susan Moriarty & Associates when she was notified of her win that she was:

“just so damn happy, I just want to dance!” and added she was “grateful that the full court acknowledged the strain” she had laboured under for over 6 years and was “delighted that after all this time, justice has finally been served”.

Postscript –
Susan Moriarty & Associates filed a freedom of information request in regard to how such an ‘administration oversight’ had happened. However, the application was denied on the grounds that the documents in question were ‘judicial’ in nature and therefore exempt under the Act. Ms Moriarty has lodged an application for review of the Court’s decision with the Commonwealth Office of the Information Commissioner.

Ms Moriarty said that “We want to understand what happened here, to discover how such an astonishing delay could have occurred. This is in the interest of all litigants. The old proverb remains prescient ‘Justice delayed is Justice denied’. The court’s managers needs to understand how and why this happened so that it never happens ever again”.

Adverse Action and Sexual Harassment Dispute

By | Discrimination Law, Employment Law | No Comments

As with many employment disputes there are alternatives to litigation.  Susan Moriarty & Associates work with clients and employers to negotiate a favourable outcome as one means of avoiding the costs associated with litigating disputes.    In saying this, not all disputes are settled by negotiation and may move forward to a conference in the relevant jurisdiction of the: Fair Work Commission, Queensland Industrial Relations Commission (QIRC), Australian Human Rights Commission or Queensland Anti-Discrimination Commission.

This year, Susan Moriarty & Associates has settled a number of legal disputes out of court.   A great example is a recent dispute in which our client alleged sexual harassment in the workplace and made a complaint to that effect to his employer.  The complaint was dismissed by the employer with no further action taken.  Regrettably, matters did not end there.  A temporal link was established between the employee making the complaint and the adverse action the employer took soon after the complaint was made.  That adverse action was as follows, the employee took sick leave because of an injury on a number of occasions, following this the employer called a meeting with the employee without notice and with no agenda outlined. At this meeting, the employee was advised that ‘the relative department were looking at the absence and would guide the manager as to whether the employee would continue with the employer’. Two days later the employee was called into a meeting and handed a termination letter. As the employee was on probation his/her ongoing employment was not confirmed. The reasons for the termination were summarised as, ‘inappropriate professional conduct linked to the usage of sick leave and the notice provided in relation to absences from work’.

In this dispute, the employee had exercised a number of workplace rights such as: the right to make a complaint and the right to take sick leave, and in doing so the employer in its conduct toward our client asserting his/her rights, were adverse and, breached its duty of care to the employee.

This dispute alleging ‘adverse action’ linked to the ‘exercise of a workplace right’ was filed with the Queensland Industrial Relations Commission where a date was set down for a conference.  Fortunately, negotiations proceeded between the parties and a settlement was reached without further litigation. We successfully negotiated a compensation package, a ‘resignation’ instead of ‘termination’, a statement of service and a deed of release.  Signing the deed of release was important to our client because he/she wished to pursue a career in the same industry-which was quite small, the deed of release ensured neither party was to discuss the terms of settlement or dispute with anyone. In concluding the dispute our client emailed our office the following:

“I would like to thank Susan, Brooke, Tara and yourself for every bit of assistance given to me throughout all of this. It certainly hasn’t gone unnoticed, and for everything you have all done for me, I truly am thankful.”

Our Recent Writings

Employment Law

NEWS ALERT!

In response to the anticipated issues employees will experience at work as a result of…
Employment Law

Corona Virus (COVID-19) and your rights at work

These times employees face are unprecedented in workplace relations.  How each case is handled will…
Human Rights Law

Testing Queensland’s Human Rights Act

Anytime new laws are set, cases will be tested, allowing the judicial system to interpret…