He …. As an employer, your first priority is to provide a safe working environment. Employers may also pursue dismissal with cause in such cases, but must be careful to ensure first that it had … 9. The AHRC will undertake a preliminary investigation. All Rights Reserved. Author: Erin McCarthy. Provided the status with the employer was senior enough, a court will enforce these obligations by way of requiring the departed employee to disgorge the profits earned from the improper activity. An employer has a right at common law to issue their employees with a lawful and reasonable directive, which employees are obligated to obey. We’re experts in fighting for Australians so they receive the full benefits in their insurance and superannuation policies. Redundancies are never easy, but professional advice can help make the process fair and get you the outcome you deserve. Kamal is well recognised as an effective employment lawyer. In an interesting twist, an employee in the process of suing his former employer has found himself the recipient of a counter claim for alleged misleading and deceptive representations made in applying for his job. Most injured workers are likely to file a claim for workers’ compensation benefits. It is quite common for employers to require senior employees to execute covenants which prevent or restrict certain activities. 2. Learn how you can take the appropriate actions to pursue public liability compensation. 8.5 Can an employer control an employee’s use of social media in or outside the workplace? The more important the employee’s role and more limited the pool of available replacements, the greater the implied notice period will be. Visit our Resource Centre for the latest legal news and insights related to COVID-19. Really what your claim would be is for misconduct that results in damage to the business. Our goal is to resolve things directly with the employer with as little conflict as possible. If this can’t be achieved, we’ll explore litigation options. The employment contract and claim for damages by the employer Mr Purcell, a successful finance broker, entered into a contract of employment with Tullett Prebon (Australia) Pty Limited for a two-year term. Examples include maintenance of confidentiality and  prohibiting the soliciting of clients or co-workers for a reasonable period of time following resignation or termination. It is settled law that employers are vicariously responsible for the harm caused by an employee in the performance of the employee’s duties. Emily Anne Maclean worked in a farmer’s market. On August 1, 2003, she placed eggs on a hot plate to boil in order to make them ready for the next day’s sandwiches. Difficulties can arise where an employer wants to stop a former employee from conducting or working in a business in competition to their own. If our view is that the redundancy is not genuine, the next step is to determine the real motivation. Stress can occur when an employee has a low amount of control over the high demands an employer may place upon them. For example, although such an employee is entitled to compete following employment, in doing so, he/she must not do so unfairly. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on. An employer suing an employee for damages must have a valid legal reason, and with sufficient evidence to prove the case, the employer can win. The dismissal must not be a genuine redundancy, as defined by the Fair Work Act. When processed incorrectly, unfairly or unlawfully, they’re downright rotten. In some cases, employees are bound to a certain set of tasks or responsibilities by a contract. An exception to this is if the employee displayed serious or wilful misconduct. Regardless, here’s a round up of these common reasons to sue your employer. Restraints which have only one combination or which are broadly based are likely to be difficult to enforce. If you believe that an employee might have engaged in serious misconduct, you may not want them in the office while you investigate the matter. An employee is paid by the employers as he manages to perform his tasks to the best of his ability and gives what is expected of him to the firm. If the matter can’t be resolved, the employee can refer it to a trial; however, most discrimination complaints are resolved through conciliation before they reach court. Almost half of Australians will experience a mental health issue at some point. Maurice Blackburn is Australia’s leading class action practice, having recovered more than $3 billion for clients. Employees have certain rights and entitlements in their course of employment. Contact Fair Work Australia for assistance. In 1938, Congress passed the Fair Labor Standards Act, a law that defined the standard 40 hour workweek, a minimum wage (at the time, 40 cents per hour) and laid out rules for overtime pay.Now, the federal minimum wage is $7.25 per hour and most workers are entitled to overtime for any hours worked over 40 in a week. When Can an Employer Sue an Employee? From Rebel Wilson to Joe Hockey and Geoffrey Rush, the past few years have been dotted with high profile Australians making claims for damages to their reputation. Hopefully you are no longer working for the company as this will certainly not have a positive impact your relationship with this employer. Employers may also pursue dismissal with cause in such cases, but must be careful to ensure first that it had provided appropriate training, supervision and materials to the employee. In this type of lawsuit, the employer must act quickly after learning of the breach, seeking a mandatory order prohibiting the continuation of the offensive action. The court went on to assess damages to the employer on the basis that had the employees provided the ten months’ notice, they could not have started the competitive enterprise and seized a valuable contract. A vulnerable employee may be someone who requires workplace adjustments or someone who's made a workers' compensation claim. There are a number of recent cases which have awarded damages against a departing employee who provided inadequate notice of resignation. If you’re concerned that you may be a candidate for redundancy, get early legal advice to understand your rights and make sure you’re treated fairly and lawfully. Can an Employer Sue an Employee for Breach of Contract? This always is not the case that only the head can sue his employee but it happens the other way too. Businesses might complain that nothing is off limits, but the fact of the matter is that employees can sue because their employee rights have been violated. Once these assessments have been made, an employment lawyer will form a view as to whether the redundancy is genuine or unfair/unlawful. Find out in what circumstances your employer can refuse annual leave here. In order to avoid potential actions for damages, an employee must also ensure that he/she acts in accordance with reasonable contractual terms to which he/she agreed both during and post- resignation or termination with respect to confidentiality, fidelity and non-solicitation. Employers may only control an employee’s use of social media if the employee, by use of social media, acts in breach of his/her employment contract, e.g., the duty of loyalty. Learn how poor behaviour can get you fired. We are Australia's leading social justice law firm, fighting for the rights of everyday Australians. 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