EMPLOYERS FACE OFF EMPLOYEES ON FACEBOOK

Social media sites such as Facebook, MySpace and Twitter are gradually blurring the line between employees’ private lives and their employment. Employers are realising that the workplace extends well beyond the office or workplace and report increasing concerns about their ability to control what employees post on such sites which may impact on their business reputation or on employee relationships.

Actions by employees which are causing growing concern include disparaging comments about the business, threats against managers, harassment of colleagues and comments or photos of activities of the business which potentially breach confidentiality. In some cases, employers have taken disciplinary action, including dismissal, for what they considered to be inappropriate comments posted by employees.

Employers should be wary however. While recent decisions by Fair Work Australia acknowledge that there may well be a connection between employment and an employee’s social media activities, certain requirements must be met before termination is considered justifiable.

In the case of O’Keefe v William Muir’s Pty Ltd T/A Troy Williams The Good Guys,[1] an employee who was unhappy about incorrect payment of wages posted a threatening and abusive message  on his Facebook site, to which several of his work colleagues had access.    In this case, it was held that the employee’s comments amounted to a repudiation of the employment agreement, as well as sexual harassment of a female employee, to whom he had referred using an offensive term. Significantly, the employer had clear policies in place in relation to offensive language and personal abuse of other staff. The employee’s termination was not considered to be unfair.

The outcome was different, however, in  Stutsel v Linfox Australia Pty Ltd,[2] where it was held that an employee who had posted inappropriate comments about his managers had been unfairly terminated. He was ordered to be reinstated and paid compensation. In this case, the employee had an unblemished record of 22 years with the company and the comments were considered by the Commissioner to be similar in nature to a “group of friends letting off steam and trying to outdo each other in being outrageous”. The Commissioner also considered that an outsider would have had difficulty following the conversation or even understanding about whom the remarks were being made.

More importantly, in this case, the employer had no clear policy in relation to the use of social media. The Commissioner commented that it was not sufficient for employers to rely on generic equal opportunity and diversity polices.

The lesson for employers is clear: it is vital to have detailed and robust policies in place in relation to the use of social media as they relate to employment.

For assistance in developing your social media or other employment policies, contact our Employment Law Specialist, Michelle Morton.

The expanded definitions may lead to an increase in the number of children’s cases that are excluded from the existing requirement to obtain a family dispute resolution certificate before filing court proceedings.

Once in court, the expanded definitions may make it easier for parties involved in children’s matters to establish that family violence or abuse has occurred.  This may lead to an increase in the number of litigants seeking to rebut the presumption that the parents are to have equal shared parental responsibility for a child, on the grounds of family violence or abuse.

If the presumption of equal shared parental responsibility is rebutted, the court will no longer be required to consider making an order that the subject child spend equal time or even substantial and significant time with the other parent.  This may have significant ramifications for the course any such court proceedings, and a resulting long term impact on the parent/child relationship.

Should you have any questions about the upcoming amendments to the definitions of ‘family violence’ or ‘abuse’ contained in the Family Law Act and how it might affect your family law matter, please do not hesitate to contact us.

Image: FreeDigitalPhotos.net

It follows that a substantial rise in your land valuation can have meaningful consequences in terms of your liability for council rates and the like.

It is with this in mind that we remind you of your ability to object to an annual valuation. In circumstances where you are dissatisfied with a valuation, you may make written objection within 60 days from the issue date shown on the valuation notice.

You may recall that the State government made some significant changes to the law regarding valuations through enactment of the Land Valuation Act in September 2010.

That Act brought about a change in the methodology used by the State to value property. Where once the State considered the “unimproved value” of land, it now takes into account certain improvements made to the land in preparation for development in arriving at a “site value”. Last year’s valuations were the first under the new Act.

To ease the transition from one methodology to the other, the Act provided for “Site Improvement Deductions” and an “Offset Allowance”. The former being a deduction claimable by the owner of land for certain improvements made by it within the 12 years prior to the valuation; with the latter allowing a landowner to offset, over a number of years, the increase in the value of their land arising from the change in methodologies (where the increase was more than $1Million).

While the Offset Allowance was a one-off concession which was only available to landowners last year, the Site Improvement Deduction continues to apply meaning landowners can claim deductions against their valuation for certain improvements made to the land during the last financial year.

A Site Improvement Deduction is not automatically considered in the valuation and must be claimed by the landowner through the objection process.

In years gone by an objection could be made in fairly broad terms with little supporting information. The Act now requires a level of information be provided in support of the objection. This may include details of recent property sales, professional valuation or details of the physical characteristics and restrictions of the site not taken into account by the valuation.

If you are dissatisfied with your annual valuation, or think you might be eligible to claim a Site Improvement Deduction, we invite you to contact Travis Schmitt of our Planning workgroup to discuss your ability to lodge an objection.

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This is not a new concept, with protections for “good quality agricultural land” being in place in Queensland since 1992. The SCL SPP focuses particularly on land to be used for plant and fibre crops, as opposed to grazing lands.

While what will be considered SCL is yet to be determined, the Government has indicated that in addition to the SCL SPP, new legislation will be introduced which describes how SCL is to be identified. That legislation will then provide for trigger mapping and identification criteria. It is anticipated that the trigger mapping will then delineate all land likely to be SCL, with further criteria to be used in on-ground assessments.

It is important to note that the SCL SPP will only apply to development proposed under the Sustainable Planning Act 2009. Interestingly, it will have no impact on mining and resources developments; the Government indicating that further amendments to the relevant mining and resources legislation will be made to adequately protect SCL from those industries.

In effect, the SCL SPP will restrict development on SCL which would have temporary or permanent impacts on the use of that land for cropping purposes. Generally, development will only be approved where it will have: no impacts; can mitigate impacts; there are exceptional circumstances requiring development be located on SCL; or there is an overriding public need.

Where the SCL SPP applies, all development applications will be referred to the Department of Environment and Resource Management (DERM) for assessment. DERM will then have power (as a concurrence agency) to approve, condition or refuse the development.

In addition to the obvious impacts the SCL SPP will have on proposed development, both in restricting development and the further assessments required, DERM are also proposing significant fees for assessment of development on SCL. DERM propose the fee to simply assess development on SCL to be $27,254. Where development is proposed on the basis that there are “exceptional circumstances” justifying its approval, assessment fees will increase to $46,253.

Public consultation on the SCL SPP is open until 30 September 2011.

If you are concerned about the possible implications of the SCL SPP for your property, we invite you to contact Dan Morton or Travis Schmitt of this office.

From 1 July 2009, the Right to Information Act 2009 (“the RTI Act”) replaced the Freedom of Information Act 1992 and is part of a broader “push” model of greater proactive and routine release of information. The RTI Act provides a right of access to Government Agency information unless, on balance, it is contrary to the public interest to release the information.

Seeking Information

There are two aspects to the Right to Information which are worthy of consideration. The first aspect is that the Government Agency may hold information which you seek. For example, if you have a complaint you might make a request for information to determine the steps that have been taken to resolve a dispute. You may also want to ascertain the factual basis for a decision.

Section 21 of the RTI Act requires that an agency, other than an excluded entity, must publish a scheme setting out the classes of information and the terms on which it will make information available.  These schemes require each Government Agency to routinely make information available. The effect is much cheaper and simpler access to information about policies and decision making procedures.

Access to individual documents, however, requires an application under the RTI Act. It helps if you provide as much information as possible about the document you are seeking, for example, the title, subject matter, agency reference number, type of document or the date it was produced. Poorly detailed requests are likely to result in the Government Agency being unable to decide whether documents are relevant. In some cases requests will be rejected because the request is too broad.

Documents can be delivered by email or on CD. The documents will be accompanied by details of any documents for which access has been refused and reasons for the refusal. The refusal can be challenged by an application to the Office of the Information Commissioner (“the OIC”). The OIC can then require the Government Agency to produce all documents even including those which the agency might argue are privileged from disclosure. The OIC will then review the documents and order that you be given access to documents as appropriate under the RTI Act.

Limiting Access

The second aspect to the Right to Information is the possible effect that providing access to information might have. For example, if you have written a letter of complaint you may have included confidential information. The Government Agency may also hold incorrect information that may cause you harm if it is disclosed.

The RTI Act includes a number of categories of documents which are excluded from being accessed. As might be expected these include Cabinet documents and the like, but also excluded are documents which might found an action if disclosure would constitute breach of confidence. This may be the case where you have included confidential information in a letter of complaint. Among other categories excluded are documents which are reasonably likely to result in a person being subjected to a serious act of harassment or intimidation or prejudice a person’s fair trial or the impartial adjudication of a case.

The Government Agency is required to seek your views on whether a document is excluded before providing access.

Conclusion

The two aspects of the RTI Act are equally important. On the one hand it provides simpler and cheaper access to information. On the other hand there is a real risk that the Government Agency might provide inappropriate access to information held about you. This highlights the need for considered advice when communicating with Government Agencies including local government.

wilson/ryan/grose Lawyers can provide advice about communicating with Government Agencies, assist with requests under the RTI Act and assist in limiting access to information about you.

Please contact Ross Sheehy on 4760 0170 for further information.

“Personal Property” under the PPS Act is any kind of property other than land, fixtures, water rights and a few limited statutory licences such as minerals and petroleum licences.

Examples of some transactions involving personal property which are not currently considered to be “security” transactions but which under the PPS Act are deemed to be subject to that legislation include:

(a)   The interest of a party supplying goods under a retention of title (i.e. Romalpa) clause;

(b)   The interest of a consignor who delivers goods to a consignee under a commercial consignment;

(c)    The interest of a Lessor or bailor of goods under a defined “PPS Lease”;

(d)   A payment retention clause under a construction contact;

(e)   An agent’s right under an agency agreement to retain the principal’s property until the agent has been paid their fees and expenses; and

(a)   A security deposit under a supply Agreement.

If you have a transaction which is subject to the PPS Act, it will be important that you comply with the requirements of that legislation – or appreciate what the consequences are if you fail to so comply.

The PPS Act establishes a new regime whereby it will be essential that a secured party has “perfected” their security interest in order for that interest to prevail against other parties who may claim an interest in the goods/personal property.

“Perfection” will most commonly be effected by registration of the security interest upon the Register which will be established under the PPS Act.  That Register will be maintained by ITSA.

There are prescribed time limits within which interests must be registered which will need to be carefully observed.

The PPS Act was to have commenced on 30 October 2011 however the commencement date has been deferred to a later date yet to be announced.  It is anticipated that the new legislation and regime will commence prior to 1 February 2012.

We strongly recommend that you contact us immediately to discuss how the PPS Act will effect you in your business dealings and other transactions. Please feel free to contact either Peter Duffy or Chris Bowden of our office.

Now for most of us, appointing a life long spouse does not pose much difficulty in all this.  But what about when you are appointing one of a number of children or there are step-children or friends?  It starts to cloud up, and not because the usefulness of the Power of Attorney changes.  It is because the risk of misuse increases, and that is not so obvious.

As a result of a NSW decision in 2010 (don’t they get up to mischief south of the border?), in some circumstances you can now expect a 30 minute interrogation for what in other cases might be a 5 minute pit-stop, to see if you, or your relation/friend really understands everything.

Questions for memory:

Age, date of birth, names of relatives, address, length of stay (especially if in a nursing home/retirement village).

Questions for understanding:

Effect and significance of the document.  The extent of ALL assets, company directorships, discretionary trusts, (with luck, these should be picked up if a Will was being discussed at the same time), including how control operates for the discretionary trusts.  Some of us have trouble with that, even before we end up in “a home”).

Now you’d reckon that would be enough.  But wait, there’s more:

Questions for testing:

10-15 minutes later the lawyer should test your or your relation/friend’s recollection of what was said.  So we do (some of it) all over again.

It can be those little areas of company directorships and discretionary trusts that you weren’t really thinking about which can cause big trouble when your attorneys start looking after themselves, rather than the way you really would do it yourself.

When one of your rellies gets upset with the way things are going, it’s not just you who had to know what you are doing.  The judge will have to know that you knew.  And proving that has a Rolls Royce pathway, tiresome though it be.  Something less may still get you home, but that is not assured; and the ride for the attorney(s) and the lawyer will be a lot less comfortable.  So bear with us, we are really looking out for your interests when sometimes we ask so many questions.

P.S.

1. Don’t be offended if we ask to see you by yourself, while your proposed attorney waits outside.  That is part of the process.
2. Most times, concerns are minimal.  Our service team, Renee Bennett, Paul Martinez and Tahnie Malagueno will be alert to whether you need standard or extra Rolls-Royce.
3. The case is Szozda [2010] NSWSC 804.

Direct financial contributions are those financial contributions made through contributing income from employment to the relationship or by contributing funds received through an inheritance, compensation payment, etc.  Direct financial contributions can also be made in the initial stages of a relationship if one or both parties bring assets of significant value into the relationship.

Indirect financial and non-financial contributions take into account the following:

• Where one party has covered all household expenses, such as groceries, electricity etc, to allow the other party to use their income to pay the home loan over the matrimonial home.  The person paying the household expenses would be considered to have made indirect financial contributions.
• Where one party has allowed the other party to spend the majority of their time pursuing a career by undertaking the role as homemaker and primary carer of any children.
• Where one or both parties have of special skill that they can utilise to save the parties money.  This is usually taken into consideration where one or both parties are able to complete tasks for which they would ordinarily have to pay someone else to undertake.  For example, one party may have particular skills as a carpenter and complete works to a real property of the parties which has increased the value of this property.  Another example might be where one party has skills in bookkeeping or accounting and can complete tax returns or handle other financial matters for both parties.
• Where one or both parties do not have any particular skills but have contributed indirectly to the acquisition, contribution or improvement of the parties’ assets.  This may include that one or both parties repainted a house, completed landscaping works or improved a property in some other way through their own labour.

These types of contributions are not given a specific dollar value, but are taken into account in deciding whether there should be a percentage adjustment to either party in dividing the matrimonial or de facto property pool.  For example, it may be determined that one party made a significant financial contribution because that person earned a high income for the period of the relationship and should receive a percentage adjustment in their favour.  However, this adjustment may be balanced out by the other party receiving a percentage adjustment in their favour for undertaking the role of homemaker and allowing that person to pursue a career which lead to them earning a high income.

If you wish to seek advice regarding the above or any other family law matter, please contact our office on 4760 0100.

Ask anyone who has been injured at work and they’ll likely tell you it’s not much fun.  Sometimes the accident is no ones fault.  In those cases, the injured worker is entitled to compensation under the business workers’ compensation insurance policy.  That’s fine, but what happens when the injured worker fails to lodge their claims within the required time frames?

Often is the case that hardworking staff will downplay the effect an injury has had on them.  They just want to get on with things.  They take a positive approach and they imagine their injury or illness will resolve itself sooner rather than later.  They may not take any time off work, or if they do, they go back to work before they have fully healed.  Sometimes the injured worker will feel pressure from their employer that any absence from work will unfairly impact on the business.

In the recent case of Thompson v WorkCover Queensland, Mr Thompson was, as part of his work, exposed to raw meat products and subsequently contracted Q-fever.  He had assumed, though, that his medical condition with its flu-like symptoms would be resolved in due course, not realising that his condition was permanent and that further symptoms may take years to manifest.

As a result of Mr Thompson’s incorrect assumptions as to the state of his health, he subsequently missed the three year limitation period within which injured workers are required to commence a claim for damages.  WorkCover Queensland considered that Mr Thompson was out of time and thus barred from any entitlement to damages.  The Supreme Court was asked to determine the issue.

For reasons which were peculiar to the facts of the case, the court allowed an extension of the three year period to allow Mr Thompson’s claim to proceed.  However, it could have easily have gone the other way for him.  The case of Mr Thomson should serve to remind us that an injured worker’s injuries should not be taken lightly, and more importantly, the strict time limits should be always borne in mind.

Luke Shanahan
Injury Lawyer

In most cases, the transfer of legal title is accomplished by handing over the physical object that constitutes the gift and making it clear that it is intended as a gift. Problems arise where there is no physical object or if legal title cannot be divested without certain formalities such as the registration of an instrument of title.

The law of equity is clear on this issue and the equitable maxim “Equity will not complete an imperfect gift” means that if a donor (the person making the gift) fails to complete all the formalities necessary required at common law, then equity will not assist the intended donee (gift recipient) and the gift will be imperfect.

There is an exception to the maxim that equity will not complete an imperfect gift. This is known as the rule in Strong v Bird[1] and it operates to perfect an otherwise imperfect gift where the intended recipient acquires the gift property by indirect means. However, the rule is limited to circumstances in which there is a present intention to make a gift at the time of death and does not apply in the context of an intention to make a gift at some time in the future.

For the rule to apply:

1. The donor must have intended to make an inter vivos gift (a gift while he / she is still alive).
2. The donor must still have had the intention to make the gift until the day he / she died.
3. The donee is appointed the donor’s executor (or administrator).
4. The subject matter of the intended gift must have been capable of enduring the death of the donor.

This issue was recently addressed in the Supreme Court Decision of The Public Trustee (as Litigation Guardian for ADF) v Ban (No 2)[2]. In this decision, ADF was the registered proprietor of a property. He had a good friend, Ban who had helped him out during his recent ill health.  ADF decided that he wanted to demonstrate his gratitude so he told Ban he was going to transfer half his interest in the property to her as a gift and the property would be held by them both jointly. Ban was also ADF’s attorney for financial, health and personal decisions under an Enduring Power of Attorney.

ADF instructed Mr White, his solicitor to deal with the transfer of half share of the property to Ban.  During Mr White’s initial interview with ADF he was told that ADF had been disowned by his family and he wanted to ensure that Ban received the property.  Mr White was aware that ADF had recently been ill and as there was a possibility the transfer may have been challenged by ADF’s family, he obtained instructions from ADF to obtain a Certificate of Competence from his general practitioner.

During preparation for the execution of the transfer documents, an electronic search of the property was carried out. This showed that a paper Certificate of Title for the property had been issued.  Mr White advised ADF that he would need to have the paper Certificate of Title as it had to be lodged with the executed transfer for proper registration to occur.

As soon as the Instruments of Transfer was ready for execution, it was properly executed by ADF and Ban and the executed Transfer was returned to Mr White, and he kept it on file.

Although Mr White had asked ADF’s general practitioner on a couple of occasions to provide him with a Certificate of Competency, this had never been given. Mr White had informed ADF of that fact and he continued to retain the executed transfer on his file.  Mr White did not arrange for the executed transfer to be stamped and did not attempt to register it.  ADF did not give Mr White any further instructions to lodge the transfer or provide him with the Certificate of Title.

Soon after, ADF was diagnosed with Dementia and became incapable of making his own decisions. Ban commenced in her role as attorney for financial, personal and health matters but was later removed and the Public Trustee and Adult Guardian appointed to make decisions for ADF.  Ban tried to argue that although the transfer had never been registered, it was executed by way of a gift, and that the property should be held by ADF beneficially for Ban and ADF jointly.

In reaching its decision, the Court referred to the decision in Milroy v Lord[3], ‘that to effect a gift, a party must do everything which, according to the nature of the property, is necessary to be done in order to transfer the property and render the gift binding on the donor’.

The court also referred to Corin v Patton[4] (a real property case), where the Court said that the test for determining whether the stage had been reached when a gift of real property under an unregistered memorandum of transfer is complete and effective in equity ‘…is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor. Once that stage is reached then the gift is complete and effective in equity and the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title’.

However, in ADF and Ban’s case, although ADF had intended to give Ban a joint interest in the property, ADF had not taken all necessary steps to perfect a gift of the property to Ban in equity and she was unable to effect registration without further instructions from ADF. Therefore, the vesting of the legal title was not within the control of Ban, it remained in ADF’s control and subject to his recall or intervention. The outcome in this case was that as ADF had not taken all necessary steps to effect the transfer of title to Ban and ADF as joint tenants, Ban had no interest in the property.

In the 2010 Supreme Court case of Rutledge v Sheridan,[5] the Court also considered the case of an imperfect gift. In that case, the deceased had previously made a statement stating “I wish to Transfer” the whole balance of an investment account. The deceased gave the statement to his solicitor asking him to arrange for the transfer of the property. However, he died before the transfer could be completed. In this case, the Court held that the words used were a statement of wishes, not a gift, and that the deceased had been aware that certain acts e.g. Transfer documents, had to be completed before the gift could take effect. The rule in Strong v Bird did not apply in either of the above cases.