07/08/2020

Redundancy and unfair dismissal

There has been a dramatic rise in workplace redundancies in recent times, thanks in large part to the uncertainty caused by the COVID-19 pandemic. A redundancy that is not genuine however, may result in a number of potential actions by an employee, including for unfair dismissal.

For a redundancy to be genuine there are important processes that must be followed. Both employees and employers should keep these in mind when navigating the difficult path of redundancy.


What is a genuine redundancy?

A redundancy is considered genuine if the employer no longer needs the person’s job to be performed by anyone and where the employer has met the obligations to consult imposed by the relevant award or enterprise agreement.

An employer may no longer need the job to be performed by anyone because of changes to business requirements such as:

  • a decrease in staffing numbers due to a downturn in business
  • new technologies that make the position obsolete
  • a restructure of the business.
What is not a genuine redundancy?

There will not be a genuine redundancy in cases where:

  1. The employer still requires the person’s job to be performed by someone. This does not mean however, that the duties can’t be absorbed by another staff member or the Director of the business.
  2. The employee could have been redeployed within the organisation and was not offered the opportunity.
  3. The employer fails to follow the obligations set out in the relevant enterprise agreement or award, such as the obligation to consult with the employee.

If the redundancy is not genuine, the employee may have a claim for unfair dismissal.


What is the obligation to consult?

The obligation to consult is usually set out in the relevant enterprise agreement or award and means just that – the employer must consult with an employee before a redundancy. Usually a consultation includes:

  • more than one meeting between the employer and employee
  • an opportunity for the employee to make suggestions
  • time for the employer to properly consider the suggestions before reaching a decision, and
  • written notice of the decision.

Our Employment Law team can offer advice in you are considering a redundancy or if you have been made redundant and are not sure if it is genuine. Please contact us to speak with a member of our team.

*The legal information in this article is of a general nature and not intended to be legal advice to rely upon.

24/07/2020

E-conveyancing

Buying and selling property is something most people will have experience with during their life. The legal process relating to buying and selling process is called conveyancing and thanks to legislative updates in 2010, a part of the process can now completed online.

What  is  e-conveyancing?

Since 2010, Queensland solicitors have been able to complete the property settlement process electronically on behalf of their client. Property transactions are completed online, through a secure platform known as PEXA (Property Exchange Australia).

Why  e-conveyancing?

There are a whole host of reasons why many property transactions are now being completed online.  Settling electronically helps streamline the conveyancing process by:-

  • reducing the chance of delays,
  • eliminating the need for buyers and sellers to attend their lawyer’s office to sign certain documents,
  • eliminating the need for purchasers to obtain bank cheques for settlement,
  • processing settlement funds to a vendor’s nominated account as cleared funds, so they don’t have to wait for a bank cheque to clear,
  • eliminating the need to attend settlement in person, and
  • allowing almost immediate registration of documents.

Can  I  do  everything  online?

If you are using e-conveyancing in your property transaction, your solicitor will still have an obligation to verify your identity and collect a signed client authorisation from you, allowing them to digitally sign documents on your behalf.

This can usually be done in one appointment and the rest of the process can be done over the phone, via email or in person, based on your preference.

Do  you  offer  e-conveyancing?

At Walker Pender Group, we use e-conveyancing for the settlement of residential and commercial transactions.

Our experienced conveyancing team will also help with the necessary searches, make adjustments as needed to contracts and provide peace of mind. Buying or selling a property? Get in touch.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

17/07/2020

The costs of Residential Aged Care

Understanding the fees associated with residential aged care can be daunting, particularly with looming due dates or the inevitable pressures associated with such a major life decision. The costs can be generally summed up in three main categories:

  1. the basic daily fee
  2. any income tested fees, and
  3. the accommodation payments.
Basic daily fee

The basic daily fee is an amount that everyone has to pay when living in residential aged care. The maximum daily fee is set by the Australian Government and reviewed regularly. The current maximum is 85% of the Age Pension.

Income tested fees

For those earning over a certain threshold, an additional amount may have to be contributed towards care at a residential aged care facility.

Accommodation payment

The accommodation payment amount varies depending on your personal financial circumstances (assets and income). This is usually the largest amount that needs to be paid and there are different payment options to choose from.

  • Refundable Accommodation Payment (RAD)

This option is a lump sum payment of the entire accommodation payment amount. When you leave the facility, the balance of the RAD is refundable to you or your Estate, once all agreed fees have been deducted.

  • Daily Accommodation Payment (DAP)

This option is similar to paying rent. A daily fee is calculated, which you may be required to pay monthly. This amount is non-refundable, so you or your Estate won’t be entitled to receive anything when you leave.

  • A mixture of the above

You can choose to pay using a combination of the above options, depending on your personal financial circumstances.

If it is not possible for you to pay the accommodation fees, you can apply for financial hardship assistance and the government may lower the costs but this is difficult to obtain. Generally speaking, the decision on how to pay for the accommodation must be made within 28 days of moving into the facility.

The decisions that come with a move to residential aged care have significant financial, taxation and legal implications. It is highly advisable to speak with an experienced legal professional beforehand and if possible well before a person goes into care, so that you fully understand your choices.

Our experienced Wills and Estates team can provide you with advice and guidance with all your Estate Planning needs. Get in touch to make an appointment.

 

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

03/07/2020

What is a Statutory Will?

Australia has an ageing population and there are an increasing number of people living longer with cognitive conditions, such as dementia. Legal issues posed by this have led to many developments in the law, one being the use of Statutory Wills. A Statutory Will is a Will made by the courts on behalf of a person who lacks testamentary capacity. The courts can also revoke or amend current Wills.

 

 

What is testamentary capacity?

It is a prerequisite for anyone making a Will to have testamentary capacity, which is assessed by the solicitor taking instructions to prepare the Will.

For someone to have testamentary capacity, they:

  • Must be aware, and appreciate, the significance of the act in the law of making a Will;
  • Must be aware, at least in general terms, of the nature, and extent, and value, of the estate over which the testator owns or over which the testator has power and authority;
  • Must be aware of those who might reasonably be thought to have a claim upon the testator and the testator’s assets, and the basis for, and nature of, the claims of such persons; and
  • Must have the ability to evaluate and discriminate between the respective strengths of the claims of such person.

Medical clearance (such as a report from a GP) is sometimes required if there is a question of testamentary capacity and this can be arranged by a solicitor.

No testamentary capacity

There a number of circumstances where a person may not have testamentary capacity including where they are under the age of 18, have intellectual disabilities or suffer from a cognitive condition such as dementia. In such cases, it is unlikely that they will have testamentary capacity and so are unable to make a Will.

This can become an issue where:

  • a past Will no longer reflects the person’s wishes, or family circumstances,
  • there has never been a Will, but the Estate is significant, or
  • it is unfair for the Estate to be distributed according to the laws of intestacy.
How to apply for a Statutory Will?

An application to the court for a Statutory Will can be made a person who has a relationship to the person – such as a spouse, a parent, a relative or an administrator appointed by QCAT. The process can be complex and it is always advisable to speak with an experienced legal professional regarding Estate planning.

Our experienced Wills and Estates team can provide you with advice and guidance with all your Estate Planning needs. Get in touch to make an appointment.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

01/07/2020

Binding Death Benefit Nomination

Superannuation can be a significant asset for many people and for some, it represents the larger part of their Estate. However, superannuation benefits don’t automatically flow to your Estate when you die. They are instead are distributed by the Trustee of the superannuation fund based on the rules of the fund and the relevant superannuation law.

While this is the case, you can make your wishes clear to the Trustee by making a binding death benefit nomination.

What is a binding death benefit nomination?

A binding death benefit nomination (BDBN) binds the Trustee of your super fund to pay your superannuation benefits to the beneficiaries you nominate when you die. In making a BDBN, you nominate the beneficiaries and the percentage you would like them to receive. While the rules differ from fund to fund, you can usually nominate:

  • your spouse,
  • children, and
  • your personal legal representative (the executor of your Will or administrator of your Estate) to distribute as per your Will.

Depending on your super fund, BDBN’s can be lapsing or non-lapsing. Lapsing nominations usually expire after three years and need to be remade to be valid.

Why should you make a BDBN?

A BDBN makes your wishes clear and a payment from the superannuation fund to your beneficiaries can be expedited because of this. A BDBN can provide some peace of mind knowing your loved ones will be looked after once you are gone.

BDBN’s are also particularly useful in modern family dynamics where there may be multiple parties who can make a claim on your Estate or where there has been family conflict.

When should you make a BDBN?

You should review your BDBN regularly to ensure it meets your current needs. Like your Will, it is particularly important to review your nomination if:

  • you get married or divorced, or enter or leave a defacto relationship,
  • your family changes, for example with the introduction of children or grandchildren, and
  • one of your nominated beneficiaries dies.

If your nomination in your super fund lapses every three years, you should diarise the date it lapses and review it each time.

There are legal and tax implications that can arise from making a BDBN and it is important to understand these before you make one. Our experienced Wills and Estates team can provide advice on BDBN’s. Get in touch to make an appointment.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

25/06/2020

What is equal shared parental responsibility?

In parenting matters, the law presumes that is it in the best interests of a child for their parents to have equal shared parental responsibility for making decisions in relation to their child or children, unless there is evidence of domestic violence or abuse.  So what is equal shared parental responsibility?

Parental responsibility covers the usual decisions, powers and responsibilities of a parent in caring for their child until their child reaches the age of 18. The Family Law Act (Cth) presumes that the parents have an equal say in such decisions and that the responsibility for making such decisions are equally shared by the parents. The presumption of equal shared parental responsibility is not affected by who the child primarily lives with or how much time a child spends with each parent.

What sort of decisions?

The types of decisions which must be considered by both parents include but is not limited to:

  • where your child lives
  • where your child attends school
  • whether your child is to have a religious upbringing
  • how any major health issues are to be treated

The presumption of equal shared parental responsibility does not extend to everyday decisions such as your child’s diet, how much television they can watch and what they wear.

Parents are expected to make a genuine effort to consult with the other parent in relation to these matters and it’s important to keep this in mind, even when the relationship between the parents is tense or has broken down.

There are cases where the presumption of equal shared parental responsibility is not in the best interests of the child and in that case, the courts may make an order contrary to the presumption of equal shared parental responsibility.

To speak with an experienced professional regarding your family law matter, contact us.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

17/06/2020

Domestic violence support

During recent times we have all spent a considerable amount of time at home but for some, home is not the safest place.  We discuss domestic violence support and where those impacted by domestic violence can turn for help.

By many accounts, requests for domestic violence support have spiked and are expected to increase even as the COVID-19 restrictions continue to ease. For those experiencing domestic violence, the legal system can provide some support by way of a Protection order. Applications can be made by the police or by an individual who can attend at their local magistrate court. A lawyer can assist you in drafting that application.

Resources

For immediate support, those impacted by DV can turn to the police. Otherwise, there is a multitude of organisations accessible to our community offering free or low-cost support.  The services offered by these organisations include advice and information, counselling, emergency accommodation, expert referral, court support and a host of other services.

To speak with an experienced professional regarding domestic violence and how you can access all necessary personal and legal services, please contact us.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

11/06/2020

Benefits of mediation

Often people assume that mediation or Family dispute resolution is only relevant to family law matters involving children, but this is not the case. For parenting matters mediation is compulsory, and in property matters it is highly recommended. 

Why mediation?

First and foremost, mediation can represent an economical option compared with litigating a dispute through the courts. Not only does it reduce or prevent the heavy burden of legal and court related expenses, reaching a resolution at mediation is quicker than litigation as it can take years to progress a matter through the court system.

Mediation allows each party to express their view as to how a matter can be resolved in a safe environment. It can help parties focus upon the issues that matter the most, and even if the matter does not resolve at mediation, it can help illuminate the path forward and highlight any steps that need to be taken, such as obtaining further valuations of property before further negotiations occur.

At mediation, the parties have the undivided attention of an experienced Family Dispute Practitioner (Mediator) and can have the support of a lawyer for the duration of the session which could last an entire day, something that is often not possible in busy legal firms and courtrooms.

Finally, mediation allows for creative solutions that are potentially not available to the courts.

How does it work?

Mediations can take place with both parties being in the same room provided both parties agree or otherwise  by shuttle where the parties are in different rooms and the mediator moves between the two rooms thereby ensuring the parties are kept separate or it can take place by telephone or video link.

To speak with an experienced Family Lawyer and Family Dispute Resolution Practitioner regarding your family law matter, please do not hesitate to contact us.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon

04/06/2020

What to expect at your first Family Law appointment

Scheduling an appointment to discuss a family law matter can be daunting, at an already tense time. To help lift some of the mystery and provide some peace of mind, we’ve put together a guide of what to expect at your first appointment.

What to bring?

It’s important to bring with you two forms of photo identification (preferably your driver licence and passport) but if you don’t have a passport your birth certificate, medicare card and if applicable your marriage certificate. When you first arrive at our office you will be asked to fill in a client information sheet and provide your photo identification. We do this so that we have your contact information on file and have fulfilled our legal obligation to verify your identity.

What questions will you be asked?

The questions you will be asked will depend on the type of matter you are coming in to discuss. For example for advice regarding divorce or property settlement, you will be asked details like:

  • the dates that the relationship commenced and ended
  • whether you are married or defacto
  • details of any assets owned such as real estate, bank accounts, superannuation and cars
  • details of any liabilities such as a mortgage credit card debt or personal loan
  • what kind of contributions each party made before, during and after the relationship
  • the future needs of each party (factoring in age health and earning capacity etc.)

If you are visiting regarding a parenting matter you might be asked details such as:

  • the ages of your children
  • whether there are any current parenting arrangements in place
  • the views of the child

Regarding any family law matter you might be asked about whether you have a current Will and Binding Death Benefit nomination in your super.

What should I do before the appointment?

It’s a good idea to write down any questions you want to ask, or any areas that are causing you particular concern or anxiety. Talking with an experienced family law professional can help to ease some of the worry and clarify the path forward.

If you have any concerns about domestic violence, you should also bring this to the attention of your family law professional, as they will be able to provide tailored advice in these circumstances.

What advice can I expect in my initial appointment?

The advice you will be given will be tailored to your personal circumstances and will depend on your unique situation. At your initial appointment you can expect advice regarding your options moving forward, advice on any costs and time limits that might be relevant to you.

To discuss your appointment or to make an appointment to discuss your family law matter, please contact us.

*The legal information in this post is of a general nature only and not intended to be legal advice to rely upon

28/05/2020

Digital accounts: what happens after you die?

In our previous post, we covered what happens to your social media accounts after you die. This time, we explore what happens with your Google & Apple accounts and how you can clarify your wishes when it comes to your digital identity.

Google

As with Facebook, Google allows you to make provisions for what is to happen to your account upon your death, before the time comes. The settings can be accessed in the Google Account Help Centre.

Apple

Apple is a different kettle of fish. According to their terms and conditions, Apple will not transfer your account to any other person and any rights to your content terminate upon your death, unless Apple is provided with a Court Order saying otherwise.  If Apple receives a copy of a death certificate for a loved one, they may delete the account and all content within it.

So what can you do?

Leaving passwords written down in the care of others is not a surefire way of passing on your digital estate, not only because of the need to update passwords, but also because you may be breaching the terms and conditions of a service by sharing your password with another person. If the service provider finds out that another person is accessing your account, they could ban that person and remove the account for breaching their terms and conditions of use.

Your general wishes regarding what should happen with your digital identity can be captured by specific bequests in your Will. If you’d like to update your Will, please don’t hesitate to contact a member of our friendly team.

 

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon