Was Your Redundancy Genuine or Disingenuous? – An Employee’s Perspective

Got some bad news at work recently? Made redundant or sacked?

Can you as an employee be made redundant, and in what circumstances?

What is Redundancy under the Fair Work Act 2009?

Section 389 of the Fair Work Act 2009 defines “redundancy” as either:

• When the employer either no longer needs the job of the redundant employee to be performed by anyone.
• When the employer becomes insolvent or bankrupt.

A typical example would be when the employer brings onboard new technology and replaces humans with robots, or when due to an economic downturn the company either slows down its activity or closes down. Redundancy can also happen for example, when an employer:

• Relocates interstate or overseas.
• Restructures itself due to a merger or takeover by a new owner.

How do you know if your employer’s action of redundancy is genuine?

This is a question of fact. The fact can be found from the employer’s conduct which is likely to become known after your redundancy is affected and you left the employer. An example of this could be a scenario whereby the employer told you that your role is no longer needed only to find out later that they hired someone else for the same role they claimed was discontinued. Other examples can include; the employer ignoring or failing to consult with you under an award or registered agreement. The redundancy could also be perceived as disingenuous if the employer was able to provide the employee with another job within the employer’s business, but it chose not to.

If you are terminated under a genuine redundancy what are your entitlements?

Section 119 of the Fair Work Act 2009 spells out your rights upon a genuine redundancy. There is a table with a defined schedule and rate to calculate your redundancy payment. There are exclusions too. For instance, if you did not have continuous employment with the employer for 12 full months, or if the employer is a small business employer, you may not be entitled to a redundancy payment.

Another example is where on the sale of a business, the incoming employer (i.e. the buyer) makes an offer of employment to the employees of the business and an employee rejects that offer.

If you are faced with a redundancy you are advised to obtain qualified legal advice to assist you to determine whether the redundancy is genuine and whether the amounts you are being paid are correct. The redundancy rights mentioned here are in addition to any of your entitlements, such as annual leave and long service leave, accrued with your employer prior to the redundancy notice.

What if your redundancy is disingenuous?

If you have proof that your redundancy is disingenuous you may be entitled to lodge an unfair dismissal claim with the Fair Work Commission. You have 21 days after the day you are notified of the redundancy/dismissal to apply to the Fair Work Commission for unfair dismissal. If the facts support your claim that you have been unfairly dismissed, you may be entitled to reinstatement and when appropriate receive your lost pay. Again you are advised to seek qualified legal advice to assist you to determine your legal position and if necessary enforce your rights. This can benefit you by, amongst other things, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue, and more importantly, that your claim is lodged within the prescribed time.

If you or a loved one has recently lost their job, it is worth speaking with an experienced employment lawyer to ensure your rights are enforced on 1800 217 217. 

Article Source: Disingenuous  

De Facto Couples | family court brisbane

 

De Facto couples have the same rights, responsibilities and legal protection as married couples under the Family Law Act in Australia.

But more stringent definitions mean that couples may unknowingly fall into a relationship — something that can have legal and financial consequences for the unwary. If you separate, your ex-partner may be able to claim a portion of your assets. Negotiating this can add to the emotional trauma of the initial separation.

You have the same rights as a married couple under the Family Law Act. Find out all you need to know.

Changes to state and federal relationship law over the last few years give de facto couples the same rights, responsibilities and legal protection as married couples.

At Family Law, our team will help you understand your legal rights as a couple. We can help you draw up a financial agreement that sets out how you will divide joint assets if the relationship goes awry. Or we can help you negotiate a separation agreement if you’ve separated prior to 1st March 2009.

If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act. For more Binding Financial Agreements for information on Prenuptial Agreements.

We support you with representation, advocacy, mediation or collaboration to help you to attain your best outcome regarding parenting, division of assets and spousal maintenance as painlessly and inexpensively as possible.

Family Law offers a free 20-minute initial Family Law and Legal Options appointment for new clients.

This appointment allows you to discuss your situation with complete confidentiality and without any obligation.

People who found this page also searched for

• De Facto Couples Law
• Ex partner seperation agreement
• Separation Agreement Lawyers Brisbane

New de facto legislation is incorporated in the Family Law Act and came into effect on 1 March 2009.

A de facto relationship is defined under section 4AA of the Family Law Act:

MEANING OF DE FACTO RELATIONSHIP

1. A person is in a  de facto relationship with another person if:

• the persons are not legally married to each other; and
• the persons are not related by family (see subsection (6)); and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Working out if persons have a relationship as a couple

2. Those circumstances may include any or all of the following:

• the duration of the relationship;
• the nature and extent of their common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their ;
• the degree of mutual commitment to a shared life;
• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• the care and support of children;
• the reputation and public aspects of the relationship.

3. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
4. A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
5. For the purposes of this Act:

• a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
• a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

The legislation allows for the Family Court and Federal Circuit Court to deal with financial issues arising from a relationship.

De facto couples under the new legislation are able to enter into financial agreements regarding assets acquired:

• before and during the relationship; as well as
• after the relationship has ended.

This part of the de facto legislation in the Family Law Act only applies to partners in de facto couples who:

• separate after 1 March 2009;
• enter into a financial agreement; or
• seek Consent Orders from the Family Court.

Parties who separate prior to 1 March 2009 can, by the consent of both parties, elect to have the matters dealt with in the Family Court. If you separated from your partner prior to 1 March 2009, the provisions of the Property Law Act 1974 (Qld) will apply.

Separation prior to 1 March 2009 – De facto property matters remain under the State Property Law Act and are dealt with in the State Supreme and District Courts.

FAMILY COURT – CHILDREN AND FINANCIAL ISSUES

If you and your partner cannot agree on the parenting of your children or how to divide the property, you may have to go to court unless you attempt a form of alternative dispute resolution. However, the Court cannot make a decision in relation to the property of a de facto relationship if the couple has not been in a relationship for more than 2 years.

If you do take your property dispute to court, the judge will make Orders for you and your partner to split your assets in a way that decides to be fair and reasonable in the circumstances.

The decision of the Court will be binding and if you are not satisfied with the outcome, you will need to appeal the decision in the Family Court of Appeal. Even if you or your partner were to die after the Court has made the Property Order, the Order could still be enforced against the deceased estate.

Article Source: De Facto Couples

What Every Employee Needs To Know About Unfair Dismissal

There are many versions of what people may conceive as “unfair dismissal”, or commonly known as unfairly being fired from their job, depending on what side of the fence they are on.

What is employee unfair dismissal?

In general, it refers to a situation when an employee has been fired or been pushed to the edge unlawfully, so as to force him/her to resign from their position for no valid reason recognized by the current laws.

How do you know if your employer fired you unfairly?

The rule of thumb is to look at your own employment agreement first. Look for the following four specific things, although the list is not exhaustive, it should pretty much give you some idea of what unfair dismissal is:

• How long you have been working for your employer and whether your employer was a small business with fewer than 15 employees;
• Look to see if the reason for your dismissal accords with your agreement under its termination clause;
• Look to see if the dismissal was proportionate with the act or omission you may have done (that is: whether the dismissal was harsh or unjust); and
• Look to see if your employer followed a fair process to have you dismissed.

Does the termination clause in the employment agreement means that you cannot fight your unfair dismissal?

No. But the answer here is subject to a couple of variables. For instance, an employer might deem that they have acted upon the termination clause fairly and that they were right in firing the employee in the first place and nothing was harsh, but it may well be the opposite. It is a matter of right interpretation of the termination clause, the laws, and the advice that an HR manager or the decision-maker may receive or give at the time in question.

What laws in Queensland protect you against employee unfair dismissal?

The provision of unfair dismissal is covered by the Fair Work Act 2009. Section 385 of the Act defines “unfairly dismissed” as a dismissal of harsh or unreasonable nature, not consistent with the Small Business Fair Dismissal Code, and that the dismissal was not a case of genuine redundancy.

What rights do you have at the workplace and can you get fired for exercising those rights?

You cannot get fired for exercising the rights detailed below (That is: your employer cannot take adverse action against you just because you have exercised those rights). Please note that the list here is not an exhaustive one, but should shed some lights on your workplace rights:

• You cannot be bullied or discriminated against at your workplace and if you reasonably confront that and you are fired, your employer may have taken adverse action against you;
• Because you are a member or not a member of a union;
• Taking or not taking part in industrial activity;
• Having a protective attribute;
• Wearing any religious requirement or symbol such as wearing Hijab, or other religious headgears or symbols
• Forcing you to do something against your will; and
• If you are subject to undue influence or pressure

If you are fired, how long do you have to lodge your claim and where?

If you deem you have been unfairly dismissed, you have 21 days after the day you are notified of the dismissal to apply to the Fair Work Commission for unfair dismissal. It, of course, is best to seek legal advice immediately. This can benefit you among others, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue and more importantly if your claim is lodged within the prescribed time.

Here at Aylward Game Solicitors out the team is ready to assist you with any employment or workplace-related legal situations on 1800 217 217.

 

https://aylwardgame.com.au/which-of-the-following-statements-best-describes-your-right-to-work-in-australia-employment-law-lawyers/

Article Source: Unfair Dismissal

Foreigners New ATO Requirements: Changes to the special CGT rules

ALERT! If you’re a foreign resident for tax purposes in Australia, special Capital Gains Tax (CGT) rules apply when you sell residential property.

Changes announced by the Federal Government in the 2017-18 Budget came into law on 12 December 2019. These changes mean that if you are a foreign resident for tax purposes at the time you sell your residential property will no longer be entitled to claim the CGT main residence exemption unless certain life events occur within six years of becoming a foreign resident (“life events test”). Employers will need to be prepared for the new ATO reporting requirements for employee wages and superannuation that will start to be effective from 1 July 2018.

Life events test

To satisfy the life events test you MUST, at the time of sale, have been a foreign resident for tax purposes for a continuous period of six years or less and during that period any one of the following events also MUST have occurred:

• You, your spouse, or your child under 18, had a terminal medical condition.

• Your spouse, or your child under 18, died.

• The relevant event was the distribution of assets between you and your spouse as a result of your divorce, separation or similar maintenance agreements.

You, therefore, need to consider this when you rely on the exemption for a variation to your foreign resident CGT withholding rate.

ATO requirements

In your next income tax return:

• The net capital gain in your income MUST be declared; and

• The foreign resident withholding tax paid to the ATO can be claimed as a credit.

Effective date and time of change in the law

For property held by a foreign resident for tax purposes prior to 7:30 pm (AEST) on 9 May 2017 the CGT main residence exemption:

• May ONLY be claimed for sales until 30 June 2020 and provided the other requirements for exemption are met; and

• No longer applies to sales that occur from 1 July 2020 UNLESS the life events test is satisfied.

Key points

• This only applies if you are NOT an Australian resident for tax purposes when you sell your residential property.

• If you sell pursuant to a Contract the relevant time of sale is the time you entered the Contract.

• If you DO NOT sell pursuant to a Contract the relevant time of sale is the time of settlement.

• You are unlikely to satisfy the requirements for the CGT main residence exemption if you were not an Australian resident for tax purposes while living on your property.

• The changes also apply to your legal personal representatives, trustees, and beneficiaries of your estate, your surviving joint tenants, and special disability trust if you are a foreign resident for tax purposes when you die.

Article Source: Ato Brisbane

How to Save Money on a Divorce – 6 Easy Steps to Keep your Costs under Control

If you are facing the prospect of engaging a lawyer to advise you regarding a family law matter, there are a variety of things you can do to help keep your costs under control. Our accredited specialist Family Law Director from Aylward Game Solicitors Ian Field has many years of experience in running these cases. We asked him what he would do himself if he was instructing a family lawyer for the first time. This is what he shared.

• Don’t delay in speaking to a lawyer – situations change quickly, and understanding what is appropriate and what is not from the start is vital.
• Make sure you have copies of documents like bank statements, tax returns, mortgage balances, trust deeds, etc. They are likely to be needed so get copies from the start. If your lawyer has to keep asking you for copies they will be charging you a fee each time they contact you.
• When you do speak to your lawyer, make some notes before your appointment. Not only will you make sure you get all of your questions answered, but it’s also more efficient for your lawyer – and that keeps your fees down.
• Engage a law firm that will give you an honest opinion about what is realistic as an outcome. Aylward Game has been providing family law advice for many years. They pride themselves on giving realistic and practical advice. If your lawyer just tells you they will fight for what you say you want, be wary. What you want and what you might be able to get are not always the same.
• Don’t wait until the door of the Court or the day before the trial to be prepared to compromise. This happens all the time. If you are prepared to compromise, do so early on.
• If you adopt a position or send a proposal to your ex, think how you would feel if you were receiving that communication. If you wouldn’t like it, maybe it’s worth reconsidering it.

Ian has been an accredited specialist and family lawyer in Qld since 2013. He practiced as a family lawyer in England from 2000 to 2005 and was admitted as a solicitor in Qld in 2007. He has also been an Independent Children’s Lawyer in Australia since 2013.

To arrange a complimentary and no commitment initial consultation,

please contact our staff on 1800 217 217 or Book on our website.

Article Source: 6 easy steps to keep your divorce costs