Mental Illness in the Workplace

DID YOU KNOW?

Did you know that one in five (5) Australian adults experience some form of mental illness every year? This serious illness has increased over the past 5 years, which now have seen around 45% of Australians aged between sixteen (16) and eight-five (85) experiencing a mental illness at some point in their life. As we all know, unfortunately, mental illness or any form of illness doesn’t just stop at home. You live majority of your life at work and thus wherever you go your illness may shadow.

As an employee, you may develop a mental illness prior to your employment or during your current employment and without a good support system and ongoing work strategies you may be in a worse off position. As an employee, you need to know your rights and privileges at a workplace if it is affecting your day-to-day life. You deserve a workplace that ensures a safe and healthy environment.

EMPLOYERS AND MANAGEMENT ROLES

All employers and management roles require appropriate steps to be taken to minimise and eliminate any form of illness whether that be mental or physical that is impacting an employee. Employers and management staff are obliged to create and identify possible work practices, actions or incident procedures which may eliminate mental illness of their employees.

There are many reasons why an employer should help improve and support an employee’s physical and mental concerns, namely; because a safe and healthy workplace is good for business, it improves productivity thus increasing revenue but most importantly it’s because it’s the LAW.

An employer has a number of legal obligations in relation to the management of mental illness in the workplace; ensuring that Occupational Health & Safety is met, avoiding discrimination within the workplace both with employer-employee relations as well as employee-employee relationships and ensuring privacy has been kept between the employer and employee.

MENTAL ILLNESS AT WORK

The employer must provide, ‘reasonable accommodation’ to assist an employee to properly perform their duties whether that employee is physically or mentally disabled. Unfortunately, for an employer, supporting and facilitating a mental illness is of greater difficulty to suppress and support than that of a physical injury/disability. For example, an employer can support one of their staff members by enabling wheelchair access and assessable workspaces for a person of physical illness however, supporting an employee with a mental illness comes with greater challenges.

The Courts have focused on what is ‘reasonable’. The Court will require employers to go to all lengths to enable employees with mental illness to keep working but on the other hand an employer mustn’t go to such accommodation that is too much of an offset for an employer’s revenue and expenses.

In the principal case of Ambulance Victoria v M, [2012] the Full Bench determined that an employer cannot dismiss an employee or not reinstate an employee due to a lack of confidence in the employee’s ability to sustain and maintain good employment with a mental illness. There must be a reasonable based judgment in coming to this decision, momentary figures for example.

Article Source: Mental Illness 

Minority Oppression in the context of Corporations Act (Cth) What constitutes oppressive conduct?

This article briefly examines the circumstances wherein the conduct of a majority shareholder or a director of a company can be considered oppressive and when it may not. The list is not meant to be exhaustive as every case turns on its own facts.

Where is the starting point?

Section 232 of the Corporations Act 2011 (Cth) defines oppressive conduct as conduct that is contrary to the interests of the shareholders as a whole. This means that the conduct should be examined as a whole within the context of the full circumstances of the particular case.

Oppressive conduct in a nutshell

The list can be wide, however, for the purposes of this article, any conduct, specifically, by a majority shareholder or a director of a company that is tainted with unfairness, harsh, unjust or inequitable is said to be oppressive.

Can I bring an oppression action against a company in liquidation?

The short answer is no unless the liquidator consents or the shareholder is able to persuade a court that leave should be granted for this action to take place.

What is the test for a conduct to be found oppressive?

The High Court of Australia has settled the test in Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459. The Court in that case directed that the conduct in question should be examined as a whole, within the context of the full circumstances of the case as opposed to being viewed in isolation.

What are the examples of oppressive conduct?

Again, the list is not exhaustive, however, the following can be considered oppressive conduct:

• Breach of fiduciary duties of directors;
• Improper diversion of a business to another entity;
• Appointment of an administrator against members when done for invalid or illegitimate purposes;
• Excessive remuneration; and
• Most importantly, denial of access to information when demanded by a shareholder of a company.

What may not amount to oppressive conduct?

Again, the list is not exhaustive, however, the following may not be considered oppressive conduct:

• Conduct which constituted genuine attempt to save the company; and
• When conduct undertaken or subject to complaint, has the consent of the applicant.

Take-home message

Bearing in mind the test set by the High Court, it is important that before forming any opinion on whether conduct is or is not oppressive, to seek our legal advice so as to minimise your risk and cost, where possible.

For advice or assistance with all business law matters contact the Business Law Team at Aylward Game Solicitors today at 1800 217 217

Find Brisbane Business lawyers on Google Maps near you.

Article Source: Oppressive conduct 

How to Save Costs on Your Next Property Conveyancing Transaction

With Slater + Gordon announcing the closure of their Conveyancing Works division, it is timely that Aylward Game Solicitors have launched their partnership with Nectar mortgage brokers to offer high quality, full service residential conveyancing at a discounted rate.

Clients who arrange their finance for the purchase of a home through Nectar and engage Aylward Game Solicitors to undertake their conveyancing will benefit from a reduced cost of conveyancing.

As a result of the partnership between Nectar and Aylward Game Solicitors, Aylward Game will apply the commission received from Nectar to reduce their standard professional fees for arranging the conveyancing on a residential property purchase – reducing your cost without compromising quality.

Conveyancing in Queensland is complex and is affected by at least 20 different pieces of State and Federal legislation, contract conditions, extensive case law and practice guidelines. Many things in a conveyance may not go as expected.

Here at Aylward game, we do not seek to be the lowest cost provider of conveyancing.

We are highly experienced in all conveyancing matters and are able to guide our clients through any issues that arise, helping our clients to avoid costly liability and compensation issues and to reduce the stress that they face as they journey through this potentially complex legal process.

All conveyancing work is performed by experienced solicitors under the daily supervision of our principal, Mark Game, a solicitor with over 30 years experience in all aspects of the property, both residential and commercial.

“The initial joy of a low price or cheap conveyancing is soon lost by the stress caused by not having an experienced guide at your side during one of life’s major transactions”

Save Points On Your Interest Rates, And Cash On Your Conveyancing Fee”

Don’t just go to one bank… go to them all with Nectar on their portal here.

Buying An Existing Property Or vacant land

Experience matters when progressing through the conveyancing process. We can guide you through the pitfalls with your simple and complex commercial and residential property conveyancing matters. We take the guesswork away by reviewing your contract to identify issues and key dates for example your cooling off period, building & pest inspections, finance, and hidden clauses. We can recommend and undertake advanced searches. Finally, we prepare you for settlement, including paying stamp duty, calculating settlement adjustments for rates and water rates, or body corporate fees.

Selling An Existing Property Or Vacant Land

Selling your property is stressful enough. Let us ease your burden by keeping you aware of the important responsibilities you have as a property seller. We will guide you through the sale process ensuring that you meet all statutory requirements and responding to queries from the buyer’s solicitor to generally make the process as smooth as possible. We prepare you for settlement, including calculating settlement adjustments for rates and water rates and, where applicable, body corporate fees and liaising with your real estate agent and the buyer’s solicitor to ensure a smooth settlement with funds banked to your account quickly following settlement.

Off The Plan Purchases

Buying “off the plan” has become increasingly popular but there are a number of factors additional to those in a standard purchase, particularly because the asset you are buying is not built yet! We will perform a review of the contract and disclosure documents to advise you on how to best protect yourself against the additional risks. We will work with you throughout the full buying process, performing initial searches, and further searches once your plan has registered. Finally, we work with you in the period from plan registration to settlement.

Non-Standard Conveyancing Contracts

Our conveyancing solicitors are highly experienced in advising you on these types of property and conveyancing contract matters. Whilst contacting us early is important for all such transactions it is paramount for these contracts. We have assisted thousands of clients on commercial contracts (involving Land and Sale of Business transactions), Vendor Finance/Instalment Contracts, Leases, and many more Queensland property transactions. We can also advise you on caveats, easements, and other encumbrances on a lot and the most effective means of dealing with these matters.

We have introduced this in the hopes of saving our clients money on their conveyancing without reducing the high standard of work we perform. This is full-service conveyancing with fees subsidised by the finance broker Nectar.

Mark Game, the partner responsible for property transactions at Aylward Game solicitors welcomed the new arrangement “It is vital to ensure that you appoint an experienced solicitor to look after your property purchase, and ensure that you avoid the many pitfalls that can trap the unwary or unprepared. We are delighted to be able to offer our quality conveyancing service in association with Nectar”.

This will help our clients to save some money without compromising on the quality of service.

Needing more information on Cheap Conveyancing Brisbane?

Contact The Best Brisbane Lawyers For a Free Case Evaluation

Best Brisbane Lawyers are Standing by to Provide A Free Case Evaluation so Visit us Anytime at our Brisbane Solicitors or Call (1800) 217 217

https://www.aylwardgame.com.au/contact/

Article Source: Property Conveyancing Transaction 

Is The Bar Marginalising Mediators?

 

IN THE NEWS

Bar Marginalising Mediators

This is the name of an article that appeared in The Australian’s Legal Affairs section on Friday 22 July 2016.

Every Barrister when they start out, at least for a fleeting moment, aspire to the exalted rank of Silk. They yearn for those post-nominals, QC (Queens Counsel). Like the armed forces have the SAS, the law has the QC.

Perhaps the ambition is so fierce that they dream of a legal textbook bearing their name, the QC post-nominal and authoritatively on the inside cover ‘One of Her Majesty’s Counsel Learned in Law & Equity’.

Then reality takes a bite. Those post-nominals demand an increase in fees that price the poor QC out of the market, and they find themselves less busy. Maybe they are not elite enough to be a QC (not every Rugby player can play for the Wallabies or the All Blacks). Maybe they just do not want the post-nominals (there are many ‘Junior’ barristers on far more money than QC’s with heavier and higher profile caseloads).

On application by any interested Barrister, it is generally up to the State Bar Council and the State Chief Justice as to whom trades their cotton robe for a ‘silk’ robe – hence the name Silk.

The successful ones, and the soon-to-be-successful one’s chortle amongst each other ‘How many times have you been to the High Court?’, ‘Who is your favourite IP Judge?’, or ‘does your name appear in the CLR?’

Apparently though they don’t say ‘How’s your mediation practice going?’ At least this is the case in so far as Sydney Barrister Mary Walker is concerned.

In Walker v New South Wales Bar Association [2016] FCA 799 the protocol for appointing Silk was challenged, unsuccessfully, by Ms Waker. Justice Besanko’s judgment describes her complaint:

1. This is an application by Ms Mary Walker for declarations and an order pursuant to s 233 of the Corporations Act 2001 (Cth) against the New South Wales Bar Association (“the Association”), Ms Jane Needham SC and Mr Noel Hutley SC.
2. The applicant practises as a barrister predominantly in New South Wales and she is and has been a member of the Association since 20 May 1988. For some time prior to 2014, the applicant’s practice has been wholly or substantially comprised of the conduct of mediations, as a mediator. ..She is a member of the Outer Bar. …
3. In 2014 and again in 2015, the applicant applied for an appointment as Senior Counsel. On each occasion her application for Senior Counsel was unsuccessful. An unsuccessful applicant is not entitled to reasons for the refusal of his or her application. Under the Senior Counsel Protocol, an unsuccessful applicant may discuss their application with the President. The applicant exercised that option. As to her application in 2014, the applicant was told that her application was not considered because the Senior Counsel Selection Committee determined that it was not within the Protocol. As to her application in 2015, the applicant was told that her application was considered on its merits and that she did not have sufficient support. She was told that the Senior Counsel Selection Committee deferred consideration of the meaning of “practising advocate” (emphasis added) in the 2015 Senior Counsel Protocol.

KEY CRITERIA

The judgment goes on to state that key criteria for the selection of Silks are:

During this time it is expected (without being exhaustive) that the applicants’ practice will demonstrate some or all of the following:
(i) experience in arguing cases on appeal;
(ii) a position of leadership in a specialist jurisdiction;
(iii) experience in conducting major cases in which the other party is represented by Senior Counsel;
(iv) experience in conducting cases with a junior;
(v) considerable practice in giving advice in specialist fields of law;
(vi) experience and practice in alternative dispute resolution, including arbitrations and mediations; and
(vii) experience in sitting on courts or tribunals.

Applying impious and simplifying hands to His Honour’s reasons it seems that only one of the enumerated heads goes to Mediation. Therefore, a successful applicant for Silk needs to be arguing cases on their hind legs in Courts (and Superior Courts at that).

Again, our summary can only be described as a chaotic deluge in a tempest of legal wisdom, Ms Walker was not arguing cases in Court and therefore was ‘knocked back’ for Silk on two occasions. (Ms Walker had appeared in the High Court before turning to mediation).

The point of The Australian article is that mediators are ‘an entrenched part of the civil litigation system, and encouraged by the Court’ to quote the Chief Justice of Victoria. Mediators bring about less expensive and timelier solutions and free up judges for hearing weightier and more difficult trials and appeals.

Also the point of The Australian article is that the best barristers may be dissuaded from becoming mediators if that presents as an obstacle to the prized virtue of Silk. Maybe, we are not sure if the former Chief Justice of NSW, Sir Laurence Street, now in his 90th year and Australia’s foremost mediator would agree.

At Aylward Game, we encourage mediation over litigation.

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005

Article Source: Marginalising Mediators