Unfair dismissal is when an employee is dismissed from their job by their employer in one of the following ways;
- Harsh – dismissing the employee was too severe a consequence for what they did;
- Unjust – the dismissal was based on act which is not factually correct; or
- Unreasonable manner – An average/ reasonable person would consider the dismissal as making no sense.
If the employee worked for a small business, then the employee may consider an employee has been unfairly dismissed if the dismissal was not in accordance with the Small Business Fair Dismissal Code.
An employee in NSW must make an application with the Fair-Trade Work Commission for Unfair dismissal within twenty-one days of the dismissal of the employee. The employee could also along with the application enclose letters and emails supporting his application.
Pursuant to an application being lodged, it will be forwarded on to the employer. The employer within seven days of receipt of the application must respond by filing their comments in response.
Within few weeks of the response being filed, a Conciliation Conference by telephone will be held by the Fair Work Commission to assist the parties to negotiate a settlement. The majority of Unfair Dismissal claims settle at a Conciliation Conference.
If a case does not settle through a Conciliation Conference, then a hearing date will be listed and both parties will have to serve documentation/ statements supporting their contention.
At the hearing, the respective legal representatives for the employer and employee present their arguments and supporting evidence to the Commissioner.
The employers when they receive a claim, should firstly consider whether any of the threshold criteria for an Unfair Dismissal claim have been breached. The list is not comprehensive, and we highly suggest that you seek legal advice prior to responding to an Unfair Dismissal claim as there may be legal contentions that are not obvious on initial assessment of the Application.
If you are interested in reading more about Unfair Dismissal laws, click here to read more.
If you would like to enquire about any of the issues raised above, please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.
Violetta Hanson, a service carer in Western Sydney, has been arrested this week for stealing almost $40,000 worth of cash and jewellery from her patients.
In an attempt to offload the stolen jewellery for cash, police arrested Ms Hanson at a pawn shop in Western Sydney.
Ms Hanson is accused of fleecing approximately $40,000 in jewellery and cash from terminally ill and disabled people in her care across Wiley Park, Bexley, Drummoyne and Doonside area, over the course of ten months.
In expressing his outrage, NSW Police Superintendent Paul Devaney commented, ‘Ms Hanson’s actions are a significant betrayal of trust by a person employed to care for the most vulnerable members of our community’.
Ms Hanson has since pleaded guilty to six counts of stealing property in a house and four counts of making false statements and will be sentenced next month.
Unfortunately, Ms Hanson is not the first woman to exploit the vulnerabilities of her patients. In July 2019, Siham Carollisen was charged with stealing $140,000 from her sick mother, who was living with Alzheimers.
Although rare, instances such as these stand to evidence that those elderly and sick members of society are extremely vulnerable to exploitation.
In order to prevent the victimisation of those vulnerable in our society, there are many things we can all do:
- Become aware. By informing yourself on this topic and actively raising awareness for this issue, this will help curb the neglect or abuse occurring to those members of our society. If you have a loved one in a care facility, such as a nursing home, this will also force the staff and management to become more accountable for the conditions and caretakers they provide.
- Stay in touch and involved. Family members can help care for the elderly or sick person and be on the lookout for carers actions that may suggest instances of abuse. It is important not to isolate those elderly or sick members of our community, as this isolation increases their chances of abuse.
- Encourage the victim to speak out against the abuse. Often vulnerable persons may feel worried that reporting instances of abuse will mean that they will lose the care and support that they need. By assuring those persons that there are alternate avenues available to them, this will encourage them to speak out against the abuse occurring.
If you, or someone you love is, or has been a victim of abuse, it is important to obtain legal advice to understand your rights and entitlements. If you wish to arrange an appointment, contact our team on 02 8999 9837.
If both parties have reached an agreement in relation to parenting and/or property, Consent Orders can be entered into.
Benefits of formalising an agreement by way of Consent Orders are: -
- Consent Orders is a legally enforceable agreement that is approved by a Court. It also has the same legal effect if an Order was made by a judicial offer after a Court hearing/ trial. Serious consequences can arise should the Orders not be complied with and are breached.
- Once Orders have been made, they are final. It is difficult to vary an Order once it has been made.
- In respect of property matters, you may also be exempt from payment of stamp duty if the transfer of property (e.g. your matrimonial home) is transferred to a party or child of the relationship.
Time Limitations
Whilst there are no time limits when applying for an Application for Consent Orders in relation to Parenting Orders, there are time limits when applying for an Application seeking Property Orders.
- If your Divorce has been granted, an Application for Consent Orders must be filed within 12 months of that date.
- If you and your partner were in a de-facto relationship, then you will have 2 years to file an Application for Consent Orders.
If you are looking to finalise your family law dispute by way of Consent Orders, it is important to obtain independent legal advice to understand your rights and entitlements. If you wish to arrange an appointment, contact our team on 02 8917 8700.
After 119 years, abortion has now been removed from the NSW Crimes Act. Supporters of the bill have described this is being a massive step forward for women in the state, with NSW being the last state in Australia to decriminalise abortion. After the making of this historic decision, there is the question, what does this change mean for women seeking an abortion and for doctors who perform the abortions?
Before the reform
Since 1900, abortion has been outlawed by the NSW Crimes Act. Under the Act, anyone who “unlawfully uses an instrument or other means” with the intention to force a miscarriage, could face 10 years in prison.
Despite this, lawful abortions were still regularly performed in NSW. During this time, an abortion was considered ‘lawful’ when a medical practitioner held an honest belief that the abortion was necessary to preserve the women involved from serious danger to their life, physical or mental health. However, women could not seek to terminate a pregnancy after 20 weeks.
The reform
Under the Abortion Law Reform Act 2019, which was passed by the NSW lower house last week, it is no longer a criminal offence for a woman to have an abortion. Crucially, this means that women will no longer be criminalised for choosing to have an abortion. Likewise, qualified medical practitioners who perform an abortion no longer have to fear any punishment under the new Act.
The new Act broadly divides a lawful abortion in two categories:
- termination of pregnancy on a person who is no more than 22 weeks pregnant and,
- termination of pregnancy on a person who is more than 22 weeks pregnant.
Under both circumstances, the Act requires the free and informed consent of the woman seeking an abortion. Such a consent should be obtained without any coercion, intimidation or undue influence.
Women
The new legislation has made it easier for a woman seeking an abortion under 22 weeks. This is a historic decision as women now have the freedom to facilitate the process of obtaining an abortion, either through medication or through surgical procedures.
Women can also seek to terminate their pregnancy after 22 weeks, although, a medical practitioner must be satisfied that there are sufficient grounds for such an abortion.
With the decriminalisation of abortion, it is expected that there will be an increase in the availability of services for women across the state. This is an important statement as it acknowledges the right of a woman to make a decision, prohibiting the state from criminalising a woman’s choice.
Under the Act, a woman is explicitly barred from seeking an abortion based on the sex of the child.
Doctors
The Act imposes an obligation on a medical practitioner, who is conscientious objector, to remove himself from the process at the first instance. If an attempt to an abortion leads to a live birth, the medical practitioner has a duty of care to that child as in any other live birth.
Where a woman is seeking an abortion after 22 weeks, the medical practitioner is required to obtain the assent of another specialist practitioner, before undertaking the procedure. The other practitioner should also be satisfied if there are sufficient grounds for an abortion. Therefore, in such cases, the performance of the abortion is contingent on the discretion of the specialist medical practitioner.
If you would like to inquire into any of the issues raised in the above article, contact Freedman & Gopalan Solicitors on 02 8999 9837 or by the enquiry box on our website.
The Australian Defence Force’s internal legal system is being challenged by a veteran and lawyer, Mick Bainbridge.
Legal bills for ADF members opposing military charges in Court Martial and Defence Force Magistrate Proceedings are at the ADF’s expense only if they use Defence legal officers. While ADF members can choose to obtain external representation, this must be done at their own expense. Bainbridge argues that there is an inherent bias, since Defence legal officers generally identify with being an officer of the Defence Force first and only after, as a legal officer.
Greg Barns, the National Criminal Justice Spokesperson for the Australian Lawyers Alliance also supports this notion that funding for those who choose independent, civilian representation should not be declined due to the conflict of interest present in the situation where the accused is provided with a lawyer and the organisation prosecuting the accused is also paying the lawyer. This proposed system of funding legal fees for members even when they choose civilian lawyers for representation purposes, is currently adopted by the UK and there has been pressure for the ADF to move in a similar direction.
Nevertheless, the chances for reform in this area looks uncertain as the ADF has insisted that the efficiency of the current internal legal system is dependent on lawyers who have knowledge of the nature of military life and its laws, making them more reasonable. They further refute claims against this system by insisting that an ADF member still holds their Legal Professional Privilege and that this is recognised by the ADF.
However, it does bring to question the quality of representation the members have access to financially, should their lawyers have split loyalties and conflicts of interest as they are employed by the organisation they are representing against. Furthermore, the current system also denies the members the ability to have access to legal representation they trust should they prefer civilian representation through financial discrimination.
Ultimately, Defence remains a unique area with its complex laws, but this should not deny members of the ADF representation of their choice through restricting their funding. However, with more veterans speaking up, there may be reform in the future.
If you would like to enquire about any of the issues raised above, please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.
It is our very great pleasure to announce that Freedman & Gopalan Solicitors has once again been short-listed for the Women in Law Awards 2019!
We are a finalist category of:
The Women in Law Awards is dedicated to recognising and celebrating the outstanding women shaping and influencing the legal industry. The finalist list includes over 200 high-achieving legal professionals across Australia in 31 different categories. The winners will be announced on Friday, 22 November 2019.
The importance of women in law is a cause very close to our heart at Freedman & Gopalan Solicitors. The legal profession is improved and driven forward by the presence and work of women. Women bring the qualities of patience, empathy and positivity to their work and to interactions with clients and can often face very different hurdles to men in the workforce. This is why the Women in Law Awards are an important opportunity to recognise the contribution of women to the legal profession. We are humbled to be recognised on the national stage and proud to be part of the Women in Law Awards.
We take this opportunity to THANK our loyal clientele and most dedicated Staff and team members, without whom we are unable to continue to provide our most efficient and efficient legal services. Our special THANKS and appreciation goes to OUR AMAZING TEAM comprising:
Ms Mittu Gopalan
Mr Nikita Sofronov
Ms Maneesha Zacaharias
Ms Christie Murphy
Ms Jasmin Talj
Ms Nina Ho
Ms Penelope Smith
Ms Angelique Gebrayel
Mr Nitish Joshy
Ms Mrithika Shankarla and
Mr Timothy Mathew
We are mighty thrilled to start the week with this amazing news!!!
One of our clients had recently made contact with us to notify us of the following: -
- That she had a contract with MyRepublic, a multinational Internet company, in 2018.
- She requested the contract to be terminated in December 2018.
- She then received an invoice in June 2019, requesting her to attend to the payment for apparent services provided by MyRepublic from January through to June 2019. Of course, the client was most upset and made contact with them, requesting them to have the invoice written off.
- However, no appropriate or relevant person from MyRepublic was helpful in any way, and she was unable to speak to an appropriate person who could in fact address her concern.
- MyRepublic then proceeded to direct debit the payment without addressing our client’s issues raised and without her authority as they had kept her credit card details on their system’s records when she was still contracted with their company.
- Accordingly, she was also worried whether any future payments would in fact be direct debited further. To prevent future payments from being debited, our client then had to proceed to contact her banking institution in order to terminate her credit card.
- However, despite further numerous attempts to make contact with MyRepublic and even having been falsely assured that a refund would in fact be processed for the payment, no money was returned to our client.
Subsequent to obtaining legal representation, MyRepublic was forced to respond. When threatened, intimidated and notified the matter would be escalated to a Telecommunications Ombudsman, a response was finally obtained. They had no valid response to provide as to why an invoice was issued 6 months after the contract was repudiated by our client.
This is a clear situation where false representations were made to a customer on various occasions and where a transaction was fraudulently made to her credit card details that was still on system’s records.
After numerous correspondences and strenuous threats being raised against MyRepublic, they finally conceded to the fact that the money was wrongly direct debited and agreed to refund it. Contrarily, their policy was such that it would only be direct debited to the nominated bank account when advised.
Further, when our firm advised MyRepublic that the card had been cancelled and that our client did not hold a valid account with that specific entity, they said they had no choice but to make a refund to that particular entity, and our client had to proceed to make contact with them to have that transaction followed through! Obviously, concerns and headaches for our client continued.
After much hassle and further inordinate steps, our client was only able to recover the payment from MyRepublic after 6 months and legal costs being incurred!
This is most unprofessional, and accordingly, kindly ensure that any company that has your direct debit contact details are notified in writing of the following: -
- When your contract needs to be terminated, kindly put them on Notice via writing.
- Kindly ensure that they are also notified in writing that direct debits are to be cancelled.
- If a payment has been illegally processed, ensure that you follow it through rather than letting these multinational corporations embezzle moneys from you without appropriate authority.
If you believe you have exhausted your communication efforts with any company, contact Freedman & Gopalan Solicitors on 02 8917 8700 in order to obtain advice and retain our services to recover your debt!
Centrelink’s controversial 'robodebt' scheme has come under fire with a class action to be launched against the government over Robodebt due to the claim that it is unlawful.
Former Labor leader, Bill Shorten, backed the action. The senior partner of Gordon Legal, bringing the claim, stated that collecting money based exclusively on an algorithm was unlawful due to its penal consequences. They claimed that the mechanism was too simplistic and did not apply to the reality of people’s varying situations appropriately and rather, should be considered on a case-by-case basis. The partner further alleged that investigations have established an approximate sum of two to three hundred million dollars being wrongfully claimed from people and some of these have also had to pay 10 per cent penalties on these amounts, once the debt is sold to a private collector.
Other critics have raised issue with the legality of this scheme as it reverses the onus of proof such that the welfare recipients need to prove that they do not owe money rather than the Government proving that they owe money.
However, this has been disputed by the Government Services Minister, Stuart Robert, who views the suit as a political move and insists that the system is working. Despite 20 per cent of letters sent out demanding debts that were not owed, he claimed that the system was still working as the letters are merely a result of a discrepancy between their reported income at Centrelink and what they report for their tax return to the Australian Tax Office (ATO) and that the letters merely required the discrepancy to be explained.
Apart from this suggested class action, Victoria Legal Aid also brought an action on behalf of government employee Deanna Amato. Centrelink had claimed that she owed a debt of $2,754.00 that was paid to her while studying a diploma and also took all of her tax return without knowing or proving that a debt existed due to the reversal of the onus of proof. There is also another case for Madeline Masterson to decide if the Federal Court should test the legality of Robodebt due to Centrelink’s decision to clear her debt after Victoria Legal Aid filed her case earlier this year.
We hope that these hearings and the formation of the class action will alter the process to make Robodebt more legally compliant and to clarify the debt-collection process for the general public.
If you would like to enquire about any of the issues raised above, please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.
Australian treatment of refugees has once again come into the spotlight, this time with the Sri Lankan Tamil family of four from Biloela, Queensland as the face of it.
They have escaped deportation temporarily through a last-minute injunction where their matter is once again due before the court for an interlocutory hearing on 18 September 2019.
Priya and Nadesalingam came to Australia as Asylum Seekers, in 2012 and 2013 respectively, by boat, following the civil war in Sri Lanka. Their temporary bridging visa ran out after 4 years in March 2018 which resulted in the Australian Border Force (ABF) officers taking them to the detention centre in Melbourne during a raid at dawn.
The civil war in Sri Lanka between the government forces and the Liberation Tigers of Tamil Eelam (LTTE), also known as the Tamil Tigers, occurred across 26 years before ending in 2009 with the separatist movement of the Tamil Tigers being obliterated by the government forces. While the civil war has officially ended, the treatment of Tamils has not necessarily improved.
Hundreds of Tamil Tigers surrendered to the government at the end of the civil on the premise of humanitarian treatment but were made to board buses and were never seen again. Not to mention, The International Truth and Justice Project in Sri Lanka has received claims of continuing torture of Tamils with 76 Tamils alleging torture and sexual violation during illegal detention between 2015 and 2017. Currently, many Tamils like Tamil activist Ramanathan Shrignaneswaran allege that Tamils in Sri Lanka continue to live in fear in the militarised north where they risk being arrested by the government forces under the farce of terrorism. Moreover, recent political developments in Sri Lanka involving Gotabhaya Rajapaksa, who was fundamental in defeating the Tamil Tigers, being named the opposition’s candidate for the presidential elections sends a frightening signal to Tamils in Sri Lanka.
In the present case, the family is fighting their case on the basis that they will face persecution on their return to Sri Lanka due to their involvement with the LTTE where Nadesalingam claimed that he was forced to join the Tamil Tigers and was hence harassed by the Sri Lankan Forces. Moreover, by leaving the country on boats they had already committed an offence in the eyes of the Sri Lankan Authorities.
The family, who could have been deported on Friday afternoon, will remain in detention until 18 September 2019. The family could remain in detention for months if the matter goes to a full and final hearing after 18 September 2019, for which a date has not yet been set.
However, Home Affairs Minister Peter Dutton insists that the Tamil family were not refugees but were rather economic migrants who are not entitled to protection from Australia. Evidence that Nadesalingam travelled between the Middle East and Sri Lanka between 2004 and 2010 for work has been used to support this claim and further, that he was not involved with the LTTE and would not be of concern to the Sri Lankan Authorities. However, Damien Kingsbury, Professor of International Politics in Deakin University stated that this was not an unusual occurrence with Sri Lankans during the civil war.
Moreover, with the 6th recent attempt of a people smuggling boat from Sri Lanka being intercepted by the Australian Border Force Officials, Dutton stated that the threat of Sri Lanka was a concern. Hence, Prime Minister Scott Morrison said that he would not be granting an exception by using his discretion as it would send the wrong signal to those in other countries seeking to enter Australia through boats and it would undermine the strength of Australian borders.
As a result, there has been a large amount of support from the Australian public as seen through the activism in support of the family. While this could have the effect of putting greater pressure on the government to grant them asylum, it could also be counterintuitive. Immigration lawyer, Simon Jeans, who has worked with the last 10 immigration ministers states that the widespread media coverage has the effect of cornering the minister such that if he does grant them a visa, it would encourage more people to make such campaigns in the future.
Nevertheless, the coverage does bring greater light into the plight of refugees in Australia with concerning images of the family being brought to Christmas Island and a video of the Australian born children of the family screaming for their mother as she is pulled away by the ABF being screened.
If you or someone you love are at risk of deportation, seek immediate legal advice. Please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.