Employment Law Matters

Employment Lawyers

For over a decade McDonald Murholme has been actively involved in promoting the employment law rights of Victorians. It has probably represented more employees and won more compensation than any other law firm in issues relating to termination of employment in Victoria over that period. As a result, it has the experience and practical knowledge in the functioning of laws operational in Victoria.

McDonald Murholme is a strongly independent law firm prepared to push the boundaries of employee rights usually against the odds.

Employees have a weaker bargaining position than employers. The 2006 Workchoices legislation is widely acknowledged to weaken employee rights. It is the mission of McDonald Murholme to provide equality of bargaining strength and to win worthwhile outcomes for employees in difficult work situations.

At McDonald Murholme we sometimes find that employers and their legal representatives seek to exploit the perceived weakness of the employees position. It is a commonly held belief among employers that their economic strength gives them freedom to exploit. Only experienced legal representation can defeat this misconception as some employers and their legal representatives will play a game of bluff and bullying over a protracted period often to the door of the Court.

Any lawyer representing employees must be capable of calling the bluff. That means identifying from the outset what is the employees best case scenario in an employment dispute and following a strategy to achieve that end. It means establishing a good relationship with the client who needs not to be deterred by the bluff and the legal antics of many employers and their legal representatives.

Cost assistance in litigation

McDonald Murholme recognises that an employee who has recently lost his or her job is usually in no position to pay substantial legal costs. When litigation commences, McDonald Murholme clients normally have their legal costs paid out of settlement monies paid by their former employer. All of our clients are expected to make a commitment to their case throughout legal proceedings by paying the disbursements. These are reimbursed upon the successful outcome. We understand the need to provide legal services based on performance and results and invariably do so.

With a past success rate of 98% we can confidently offer our clients a high probability of succeeding.

The provision of legal services in this way ensures that persons who have meritorious claims are not prevented from bringing those claims merely through a temporary shortage of money until receiving compensation.

Where legal advice is required for the purpose of assisting a client to decide whether or not he or she has a meritorious claim, that advice is provided in two steps.

Preliminary telephone or email enquiry without fee.
A personal conference at our offices at a fee of $400 per hour plus GST. At this conference you provide us with the facts, we provide you with the legal remedies and a strategy to achieve a favourable outcome within the law.

In more than half the cases we deal with we are able to negotiate a resolution to the employment problem through direct contact with the employer. This saves the need to commence legal proceedings. We urge our clients to exhaust the opportunity for an early settlement. There are many benefits in this approach. Both the employer and the employee do not incur the substantial legal costs involved in litigation. The employee is given an early opportunity to 'get on with his or her life'. The employer does not incur the disruption and time wasting involved in putting up defences which are all too often the invention of their lawyers some of whom are more interested in feathering their own nest than solving a problem for their client.

Other areas of law on this page

Current threats to employees

Over recent years a new cut throat culture has become more common in Australian business due to:

The opening up of the Australian economy by allowing multinationals to more easily take over Australian companies. With foreign ownership often comes foreign management as CEO's are brought from overseas with more interest in repatriating profits abroad than preserving Australian living standards. The influence of lower standards is also felt by local companies who often feel obliged to adopt the foreign standards to survive.
The reduction of trade barriers easing importation of cheaper manufactured goods and services. Local producers feel the need to cut costs to compete and identify the entitlements of employees as a prime target in cost cutting.

The result is obvious.

In the attempt to make Australian wages and conditions measure up to overseas standards, large sections of the workforce suffer a reduction in pay and conditions and small numbers of higher management are rewarded with very high salaries. Among the benefits lost to Australian workers, the most significant current loss is the loss of an entitlement to a redundancy or reasonable notice of dismissal.

Until recently for many employees there were valuable redundancy entitlements or common law entitlements to reasonable notice in the event of dismissal through redundancy. This was a vital part of a family's security because it ensured that if, after a lengthy period of service, a worker was dismissed from no fault of his or her own there would be a reasonable payment to cover the job search period. Even the Government recognised this by making the taxation payments on redundancy very low.

Now, McDonald Murholme has dealt with a flood of cases where redundancy payments are being surreptitiously removed from employees in three ways.

The employee is being asked to sign a new employment agreement and told that if they do not sign they will be treated as having resigned. The new employment agreement abolishes the entitlement to redundancy or reasonable notice but this may not be obvious to the current employee. Furthermore, the current employee may be led to believe statements by the employer that 'terms and conditions have not changed' in the new agreement.
The employee is told that the company is restructuring and that a new position must be filled by the employee. It is said that the new position is similar to the old position even though it is not. The employee is often demoted but is told that he or she is not entitled to a redundancy because they have been offered a new job. Of course as the new job may not be suitable the employee may soon find that he or she either does not like the work or cannot reasonably perform the work and chooses to resign. By resigning from the new position the redundancy payment is lost.
The employee is subject to a series of performance appraisals, often carried out by a new manager or a person who is incapable of performing the appraisals, and bad appraisals are provided. After a couple of unscheduled appraisals, accusations are made about poor performance. Sometimes written warnings are given for silly little things and the employee is not given a reasonable opportunity to defend his or herself. The employee is then either sacked without a redundancy or feels compelled to resign. The employer does not fill the position vacated but spreads the work among other employees which was always its intention.

In each of these situations, McDonald Murholme can act to protect the interests of the employee and often secure the payment of a redundancy. However, it will be rare that redundancy entitlements will be found in new employment agreements following the Workchoices legislation.

Therefore, if you want an entitlement to redundancy you will have to take advice before you sign any new employment agreement.

Many long standing employees have existing entitlements to valuable redundancy payments in the order of six to twelve months pay. Many employees do not know that they have these entitlements and fail to protect themselves. They often sign new employment agreements at the request of the employer which secretly abolish their rights. Such agreements are introduced by the employer under the guise that they do not change the employment arrangements or at a time of restructure or company take over.

Imagine the benefit to an employer if it wants to dismiss an employee who has an entitlement to say six months redundancy but shortly before the termination the employee signs a new contract not referring to the redundancy (and therefore deleting the redundancy). If soon after the employee is dismissed under the terms of the new contract which has provision for say just one months notice instead of a six months redundancy, the employer can readily save five months wages at the time of termination.

Example

As an example of the effectiveness of McDonald Murholme's work, we site a recent case in the Industrial Division of the Melbourne Magistrates' Court of M v Brobo Group.

We acted for M (whose name has been concealed to protect her privacy). The decision of the court is available from McDonald Murholme on request. It is summarised as follows.

M gave almost ten years of valuable service as a bookkeeper/financial controller. She was dismissed allegedly because the company wanted someone with a higher tertiary qualification. However, she was near to her entitlement to long service leave and she had accumulated sick leave.

By dismissing her, the employer avoided the future obligation for long service leave and did not need to pay out any sick leave. It enjoyed a winfall profit. It paid M six weeks salary at termination.

She lodged a claim in the court and was awarded six months salary in lieu of notice plus legal costs (less her mitigated loss).

Had she merely brought a claim for unfair dismissal in the Australian Industrial Relations Commission she probably would have received a net payment of nothing more than the original six weeks. It is important to choose the right legal process with the right law firm.

How we solve problems like yours

Case Note 1

Client A is employed for 20+ years as a purchasing manager for a large and successful Victorian company. He has a wealth of knowledge about the companies business. There is no written agreement as he was employed on a handshake. The son of the owner wishes to inject some young blood into the company and dismisses A without any good reason. Client A is offered three months pay which the company says is reasonable as A should be able to find another job fairly quickly based on his skill and experience. Client A who is aged 50+ claims that he is entitled to one years pay in lieu of notice which he claims is reasonable. Legal proceedings are commenced. Company lawyers claim that htey have advised the company that three months is enough. Shortly before the court hearing Client A is offered ten and a half months pay plus legal costs. Matter settled.

Case Note 2

Client B is a warehouse worker who performs a range of tasks including some unpacking of imported products to be shelved. Client B lifts a carton marked at 25kgs. Actual weight is 40kgs+. Client B injures back. Client B calls for help. Error in marking of weights revealed. Client claims workcover and weeks later returns to work for light duties.Client B sacked for lifting 40kgs+ carton which caused original injury. Client B claims compensation for discrimination claiming that he was sacked because the employer did not want to have an injured worker back at the workplace. Company denies claim. Shortly before hearing, company pays all in compensation and legal costs.

Case Note 3

Client C employed as State Marketing Manager. Company restructure. Client C demoted to Account Manager and expected to go cold calling. Client C loses commissions on her previous client base and is offered a lower commission rate on new sales. Client C claims compensation for the losses. A settlement is negotiated in which client C resigns, receives redundancy payment equivilent to three months pay and a statement of service. Each party agrees to make no disparaging remarks about the other as part of the terms of settlement and no legal proceedings are issued. Client C is not replaced.

Case Note 4

Client D is a part time employee working shift work part time at weekends, earning valuable income (double time). Workchoices legislation introduced. Client D moved to weekday shift. Client D claims unable to work weekday shifts due to family responsibilities and is not prepared to accept longer hours and no loading. Client D walks out and claims unfair dismissal. Case settled. Client paid all in compensation and legal costs.

Case Note 5

Client E offered employment as an assistant to a firm of accountants. Day before due to commence work, employer calls her to say that the job is no longer available due to his unforeseen financial difficulties. Client E sues for misrepresentation under the Trade Practices Act. Employer's lawyers advise him that Client E has no case. Matter proceeds to court. Court orders eight weeks pay as compensation plus legal costs.

Case Note 6

Client F applies for a position via a recruitment company, completes application and is accepted in to a position. Induction training commences but employer discovers that Client F has a minor criminal conviction 9 1/2 years earlier. Offer of employment withdrawn. Client F commences legal proceedings claiming that she has closed the criminal conviction before being offered the job and was entitled to keep her job for twelve months under the contract. Case settles for all in figure including Client F's legal costs.

Case Note 7

Client G is employed by local manufacturing company which is taken over by a multinational. The multinational asks G to sign a new employment agreement. The new employment agreement reduces G's entitlement to redundancy from about $130,000 to $100,000 by deleting the car allowance from the salary package upon which the redundancy is calculated.

Client G takes advice about the effects of the new contract. When he is told that he will lose $30,000 he refuses to sign the new contract. He keeps working under the old contract. Eventually there is a company restructure. Client G is paid just $100,000. He has a contractual right to $130,000.

Legal proceedings commence to recover the balance of $30,000. Multinational company refuses to pay. On the morning of the court hearing, multinational caves in and pays $35,000 inclusive of costs. Case settled.

Occupation Health and Safety Complaints

There is a wide Government advertising campaign encouraging employees to speak up at work to prevent accidents when they observe dangers at work. Regrettably, it is the experience of McDonald Murholme that workers who speak up will often be dismissed. Employers often perceive workers who stand up for their rights to be trouble makers.
Under Workchoice legislation it is relatively easy for an emloyer to dismiss an employee and it is difficult for the employee to claim unlawful termination of employment. The difficulty arises because it is very difficult to prove that the reason for termination was the discussion about occupational health and safety issues.

The downside to this is that if employees who speak up are dismissed, the remaining employees are conjoled into silence.
If you have a concern about occupational health and safety risks, you should find yourself another job while you still have a job so that you get out of the unsafe workplace. Alternatively you should have a formal complaint lodged with our assistance so that the employer is put on notice that if it then dismisses you you will rely upon the unlawful termination provisions at law.

The Australian Industrial Relations Commission (AIRC)

For more than 100 years until the recent WorkChoice legislation, the AIRC performed a respected role in the resolution of industrial disputes and the setting of standards for Australian employees and employers.

However, since WorkChoices it has been largely sidelined in respect of much of its previous work. As a result, dismissed employees must think twice before bringing an unfair dismissal claim to the AIRC. There are many legal obstacles to be confronted.

Only if there is no other suitable Court or Commission should the AIRC be used.

Because the AIRC does not normally award costs in favour of a successful litigant and because compensation awards are relatively small, often the only winners are the employer’s lawyers who can charge $20,000 or more to oppose a $5,000 claim.

All too often employees who have been harshly or unlawfully treated are offered merely a week or two’s pay in full compensation even if the employer has assaulted the employee and caused injury.

Employees sometimes have the fear of God put into them that if they do not accept such low offers they will be subject to a torturous (court) process and may even be ordered to pay the employer’s substantial legal costs.

It is often possible to achieve a much better result outside of the jurisdiction of the AIRC.

And by the way …….

Even before the Workchoice legislation many dismissed employees had a tough time in achieving a just outcome in the AIRC. Take for example Blagojevch’s case [2000] FCA 483 in which McDonald Murholme represented Mr Blagojevch, the dismissed employee. The employer produced a number of witnesses who claimed to have been present when Mr Blagojevch was given written warnings by his employer. Mr McDonald established that the written warnings were fabricated.

The AIRC awarded $10,500 in compensation but only after Mr Blagojevch had spent a lot of money on legal costs in an unnecessarily long and hotly contested case. At that time the law (section 170 CJ 2 of the Workplace Relations Act) allowed for costs to be awarded in favour of a successful worker where the employer had acted so unreasonably.
Nevertheless, the AIRC (Watson SDP) refused to direct the employer to pay any of Mr Blagojevch’s legal costs.

On his behalf McDonald Murholme appealed to the Full Bench of the AIRC. The Full Bench dismissed the appeal. An appeal was then taken to the High Court of Australia which remitted the matter to the Federal Court of Australia.

This Court found that the President and members of the AIRC Full Bench had made an error at law and sent the case back to the AIRC (Full Bench) so that it could correct its error.

Ultimately, the Full Bench did so and Mr Blagojevch received a contribution towards his legal costs.

You may contact us through the Contact Us page on this site or by phone (03) 9650 4555.

News Commentary

Legal Links

Other Links

Contact Us

PAGE DETAILS