The relevant sections are designed to prevent employees, and others, using their position or information obtained by reason of their special position to the detriment of the corporate employer or to the employee’s advantage. A case recently decided by the Alberta Court of Queen’s Bench, Shamac Country Inns Ltd. v. Sandy’s Oilfield Hauling Ltd., does not purport to change the law in that area. This helps to determine if there’s a link between vulnerability and redundancy. They believe that their redundancy isn’t genuine, and that they’ve been selected for reasons other than what their employer is claiming. 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. Regardless, here’s a round up of these common reasons to sue your employer. A vulnerable employee may be someone who requires workplace adjustments or someone who's made a workers' compensation claim. Once these assessments have been made, an employment lawyer will form a view as to whether the redundancy is genuine or unfair/unlawful. Unfair: If it’s considered unfair or there’s been no proper process, we’ll look to rights under the employee’s contract and/or the unfair dismissal regime in the Fair Work Act. Employees can be liable for civil penalties and fines for breaches of the Corporations Act 2001. Reading Time: 2 minutes. Notwithstanding this, the courts reasoned that the obligation to provide reasonable notice to terminate the relationship is a mutual one which, in the case of employee resignation, should be sufficient to allow the employer reasonable time to find a replacement. Your employer owes you, their employee, a duty of care to keep you safe whilst at work and if your employer has breached this duty of care in any way then you may be able to successfully sue them for damages. Our lawyer guides you through this important process. 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. Negligent or misleading financial advice can be devastating. For example, in Thompson v IGT (Australia) [2008] FCA 994, the Federal Court held that it was reasonable for an employer to direct an employee to attend a psychiatric assessment to determine whether the employee was fit to perform his duties and whether he could do so safely. Even without a valid restrictive covenant, senior employees are required to act in good faith towards their employer and not exploit the vulnerability which flows from the nature of the relationship. Read more here. Resolution. Ever read something in a contract and questioned the terms in it? Once your eligibility has been determined, we need to demonstrate that one of these applies: The next step is to file an unfair dismissal claim at the Fair Work Commission. It’s important to access these at the time of the redundancy announcement. The desired outcome can be either reinstatement or compensation, depending on the employee’s priorities. The desired outcome can be either reinstatement or compensation, depending on the employee’s priorities. Difficulties can arise where an employer wants to stop a former employee from conducting or working in a business in competition to their own. We are Australia's leading social justice law firm, fighting for the rights of everyday Australians. 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. Find out in what circumstances your employer can refuse annual leave here. The employer may have failed to ensure that the redundancy process is in accordance with their policies or the law. He was one of the select few Melbourne employment lawyers recommended by Doyle’s Guide as a preeminent lawyer in his field in 2019 as well as being part of the only first tier law firm for employee & trade union representation in Victoria in 2018. When Can an Employer Sue an Employee? Redundancies are never easy. 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. As an employer, you may need to share your client list with your employees. While a prospective employer has no protection under defamation law for damage caused to them by a false-positive reference, they may be able to sue for negligence. Upon smelling smoke, she returned to the hot plate only to find “full blown flames”. It is difficult to sue an employee for negligence. These restraints often involve a combination of a geographical restriction and a time restriction. 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. The Act protects the vast majority of employees in the US, but not all. 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. 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. Sometimes people won’t seek reinstatement because their relationship with the employer has deteriorated. 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. If this can’t be achieved, we’ll explore litigation options. The inability to recover damages in negligence does not preclude the employer from alleging cause for dismissal in an appropriate case. It will then conduct mediation between the employee and employer. The farmer's market was destroyed and Ms. MacLean was sued in negligence by the market’s insurer. can an employer sue an ex employee who makes continues to make false allegations that they were not paid correctly when in fact they were. Employers may also pursue dismissal with cause in such cases, but must be careful to ensure first that it had … Being proactive and seeking financial advice can make your future secure and stress-free. The answer, unsurprisingly, is yes, although it is more difficult for an employer to sue an employee than vice versa. The views expressed in the Opoku decision has not obtained universal acceptance. We can help you recover what's rightfully yours. If your employer should be paying payroll taxes, start with your state’s labor department or the IRS, but you can certainly sue the foreign employer. It will then conduct mediation between the employee and employer. 9. Still, there may come a time where you’ll have to deal with a workplace injury. While defamatory statements can significantly harm an employee, proving that such false statements were made can be difficult since the employee may not be privy to the private conversation. If we consider it genuine — neither unfair nor unlawful in accordance with the Fair Work Act’s definition — we can assist our client in negotiating a favourable redundancy package. It is quite common for employers to require senior employees to execute covenants which prevent or restrict certain activities. If our view is that the redundancy is not genuine, the next step is to determine the real motivation. Kamal is well recognised as an effective employment lawyer. Employees sue for everything from hiring procedures to termination. the dismissal was disproportionately harsh given the circumstances. the business cannot afford this expenditure, which is totally unwarranted. A common reason people sue their employer is because they have been injured in an accident at work, through no fault of their own. They accept that their redundancy is genuine, but they wish to negotiate their payout and exit. When processed incorrectly, unfairly or unlawfully, they’re downright rotten. 8.5 Can an employer control an employee’s use of social media in or outside the workplace? These may contain provisions for an employee to be moved to another position within the workplace, where appropriate, when their old position is made redundant. Employment law. Our executive employment lawyers can help you to successfully resolve an employment dispute, protecting your professional reputation and financial stability. Author: Erin McCarthy. With a job come various obligations. employees are not generally held liable for ordinary negligence or carelessness in the performance of their duties; the imposition of liability in such a case would be unjust and/or unfair; an employer accepts the risk of employee fallibility and takes that into account in the costs of doing business, supervising the employee and insuring the enterprise. While the requirement to provide ten months’ prior notice of resignation is undoubtedly unique to the fact situation of that case, it is also clear that offering a mere two weeks’ notice to resign, without reference to the particulars of the relationship, will no longer necessarily be regarded as acceptable. Lawyers can help make the process fair and get you the outcome you deserve emily Maclean! Case that only the head can sue an exception to this is if the employee ’ s.. If the employee fails to comply to the third party from the business can not this. 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