Many people will have only heard the term "Procedural Fairness" for the first time this week.
This has been a hot topic in the last couple of days because of the Court overturning the decision to cancel a visa. Its important to note that the decision is effectively a 'technicality', and hasn't really looked at the law - it is this that has left many people confused.
Procedural Fairness, also known as "Natural Justice" is one of the very foundations of our legal system. Put very simply, the process allows for a person to be given a chance to respond to something that might be adverse to them. It is quite often seen in administrative decisions - such as immigration matters, but it also seen in our line of work particularly when dealing with Workers' Compensation matters, TPD and Life Insurance products and also in Employment law.
Where a decision maker is looking to make a decision that is adverse to a person's interests, the laws of Natural Justice require that the person be given a chance to respond to what has been put to them, which allows the decision maker to have more information - that may or may not alter the outcome. The decision maker must follow through on what has been offered and promised. In this week's example, it appears that the decision maker agreed to allow until a certain time for the respondent to provide a response, however then changed their mind. Ultimately, this wasn't fair. In other words, you can't make a promise or a representation to someone that they then rely on, and go back on your word.
A denial of Procedural Fairness, does not necessarily always mean that a decision is overturned entirely, it can also mean that a decision is sent back to the decision maker to make a fresh decision, but it can also mean that the decision made was invalid. The outcome will always depend on the circumstances.
What this week has shown is that the rules will be applied equally - and they are, they are just not as widely published as this week's incident has been.
As the world awaits the next decision in this latest saga, you can guarantee that it will have been made with very careful consideration, or at least with more consideration than the previous decision.
I've been speaking to more and more people recently who hold concerns for their own safety at work because colleagues or even the employers are not complying with directions.
After almost two years of the uncertainty around what is happening, it's fair to say we are all at the end of our tether and tensions are running high. Opinions are divided and friendships have been tested. That doesn't excuse an employer from the requirement of continuing to comply with obligations placed on them.
We are all entitled to feel safe at work and to actually work in a safe work place. That's not only a feeling, it's the law. Whether employers and fellow colleagues like it or not, this entitlement of feeling and being safe extends to following health directives as and when issued by the Government.
An employer MUST take action to protect workers and others at their workplace from the risk of the exposure to COVID-19 to the extent that it is reasonably practical. Therefore this means that the employer has an obligation to follow directives.
Employers are generally going to fall into one of two categories - those that will comply, and those who won't. Usually, although not always, larger employers will have policies in place, although smaller departments within those employers may not always apply the policies consistently - particularly those departments or teams that work in different locations.
There is currently a mask directive for workplaces in Queensland. Masks must be worn at indoor workplaces such as offices unless it is unsafe to do so (or the employee has a valid exemption). If you are seated at an indoor workplace, and you are able to maintain 1.5m distance from your colleagues, you may remove your mask. Queensland Health strongly recommends that masks are worn at all times because of the rapid spread of COVID-19 (https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/public-health-directions/mandatory-masks ).
As part of their COVID Safe plan, Employers should also have hygiene supplies such as hand sanitizer, antibacterial wipes, surface sprays and cleaning products.
There are significant penalties for non-compliance of health directives. Individuals face an on the spot fine of $1,378, corporations face an on the spot fine of $6,892 and court imposed penalties are up to $13,785 or six months in prison. Refusing a police direction to wear a face mask can see on the spot fines of $206.
So what to do when your employer isn't complying or perhaps you feel unsafe?
Firstly, you should raise your concerns with your manager or HR department (if you have one). Employees in smaller businesses are likely to feel more intimidated by this, however it is important you advise your employer of your concerns (Employees also have obligations under the Work Health and Safety Legislation). Your Employer may genuinely not realise the extent of the directives, or understand your concerns. Bringing this to their attention places them on notice of an issue or potential hazard and places a positive obligation on them to consider the risk and take steps to mitigate, minimize or eliminate the risk.
If your Employer is non responsive, or dismisses your concerns, or indicates they are clearly not going to comply, you should take your own personal steps to ensure your safety such as:
If you wish to know more about your entitlements as an employee, or have concerns about your employment, our team is happy to chat with you.
Fraud, put simply, occurs where a person dishonestly gains a benefit from another person or entity. Fraudulent actions and attempts occur regularly in various settings, and injury claims are often in the spotlight. Fraud can be major deceitful actions right down to omitting to provide important and necessary information to a party, such as an insurer.
There have been some recent, publicized prosecutions for Worker's Compensation fraud, and it's important to note that there is no identifiable pattern of fraudulent activities. The watchful eye of the investigations team will take action on any number of different activities from making false claims for travel reimbursement or other expenses, exaggerating symptoms and failing to notify the insurer of 'engaging in a calling', or attending work, or work type activities - even if those activities are voluntary.
A recent case was reported in Townsville where a former Security Guard pleaded guilty to eight fraud related charges when he was receiving Workers' Compensation benefits for an injury whilst working at Bunnings. The worker claimed that he didn't think he needed to tell the insurer because he was of the opinion that the work he was doing was "rehabilitation". The worker received more than $20,000.00 in benefits from WorkCover Queensland, however was paid a total of $4,429.00 during his employment. He had also reported to doctors that he wasn't able to work, despite having worked in the days prior to the medical appointments. As if this wasn't bad enough, the lies continued when he was confronted about the work and said that he had only worked two shifts, despite having worked for several months. As a result of his actions, he was ordered to pay almost $30,000.00 restitution which included court fees and investigation costs. A conviction was also recorded.
(for more on this story see https://www.townsvillebulletin.com.au/news/townsville/a-4k-pay-cheque-has-ended-in-a-29k-fine-for-a-former-security-guard/news-story/94480d4c7e4dd2158a0dc90f552b7d04 ).
Had the worker simply told WorkCover Queensland he had been offered work, or wanted to give the work a go whilst he was engaging in his rehabilitation, he would not have found himself wrapped up in a criminal prosecution. WorkCover Queensland would have adjusted his benefits accordingly, but he is now significantly out of pocket and left with a conviction for a dishonesty offence.
A fraud conviction has long lasting consequences. Employers may be reluctant to retain or hire an employee who has been found to be dishonest, even obtaining personal insurances will be difficult - a car insurer will be hesitant, if at all willing to extend an insurance policy to a person who has been convicted of a dishonesty offence.
Whilst I can't comment on the particulars of the above matter, I have previously acted for clients who have found themselves in some hot water with insurers, or where we've found out that someone is about to be in hot water with an insurer. It puts us as legal representatives in a very difficult position, as this is where our duties conflict, and the usual consequence is that we can no longer act on that person's behalf. There have been occasions where a client has been genuinely injured, yet a poor decision on their part has resulted in the loss of a claim. There are of course some who will brazenly be dishonest.
When dealing with WorkCover, it is important to always keep them up to date with what is happening, report new symptoms, or difficulties with a return to work program. If you feel up to returning to work, or engaging in some work type activities, make sure you discuss this with your claims officer. Always follow the advice of your medical practitioners, and, if you are encountering any difficulties with WorkCover or the claims process and just want to have a chat about any concerns, our office is always ready to have a chat.
Honesty will always remain the best policy.
Isn't this a hot topic at the moment?
There are many articles floating around on whether employees can be "forced" to have the COVID-19 vaccination. There are also many more opinions on the topic.
Presently, there are already some mandated areas that employees are required to be vaccinated, which may have been made under a specific law such as a state or territory public health order. Many employers are now following suit and seeking to require their employees to be vaccinated. The question is whether this is lawful or not?
The short answer to the question is no, an employer cannot force an employee to have the vaccine, BUT, an employee's decision to remain unvaccinated may have severe consequences for employment. It is lawful however, for an employer to provide a direction to their employees to be vaccinated if the requirement is reasonable. What is deemed reasonable will vary from employer to employer and industry to industry.
So what is lawful and reasonable?
Regardless of the circumstances, employees are required to follow lawful and reasonable directions of their employer. If the employee fails to do so, the employee's employment may be terminated on valid dismissal grounds.
The industry needs to be considered along with the relevant Work Health and Safety obligations that employers must abide by. An employer is required to eliminate risks to health and safety of their employees and others as far as it is reasonably practical to do so. There will be certain high risk industries such as aged care and health care that must factor in the health, safety and wellbeing of not only staff but patients, or others such as vulnerable individuals. This will be a very fine balance between protecting one employee and the health and safety of others. There are industries already that have a requirement for certain vaccinations.
Whilst as at the time of writing this, there have been no cases published on this topic, there are cases relating to employer mandated vaccinations such as a child care worker who refused to comply with the employers direction to have a flu vaccination lost her unfair dismissal case on the basis that the context of the employers operations involved the care of children who are either too young to be vaccinated, or cannot be vaccinated for health reasons. The employer needed to balance the needs of its employees against the needs of the employer's greater community. It was found that the flu vaccination requirement was reasonable and lawful and an inherent requirement of her position that involved the provision of care to young children and infants.
There has also been a recent decision from the Fair Work Commission that determined an aged care employee's dismissal due to refusing the flu vaccine was not considered harsh or unfair. The employee had stated that she had had an anaphylactic reaction to a flu vaccine as a child. The Commission determined that the employer's elderly clients were extremely vulnerable, particularly to the flu and that the mandatory vaccination policy in this instance was not unreasonable.
These cases will be used to provide guidance in future applications about whether a mandatory COVID-19 vaccination is reasonable and lawful. No doubt we will see some cases and clarification on this issue in the not too distant future.
What can an employee do?
Along with rights comes responsibilities. We absolutely have the right to refuse a vaccine, however when electing this option, consideration has to be given to the 'responsibilities' attached to that right, or, more appropriately, the consequences. Failure or refusal to comply with this direction at worst will result in a dismissal, and possibly no further employment if seeking employment in the same industry, at best, an employee could negotiate with their employer about possible other roles available, perhaps away from clients or stakeholders, or even a work from home option. It appears likely that refusal without valid grounds such as proven medical exemptions are unlikely to be met with a sympathetic adjudicator or decision maker and the employee may find themselves not only needing to look for alternate employment, but also needing to look at moving industries.
Our lawyers are happy to speak to you about any employment related enquiries.
Hands up if you have heard of this term....
"Super Stapling" formed part of the 2020-21 Federal Budget and is part of the the "Your Super, Your Future" reforms. It has been designed to protect retirement savings accounts by effectively 'stapling' your super fund to you, so you don't have a new fund created every time you start a new job if you haven't nominated your own super fund with your new employer.
From 1 November 2021, all employers are now required to check with the ATO to ascertain what super fund or funds a new employee has before setting them up in a default employer fund.
In theory, this should at least go some way to protecting retirement savings accounts and the insurance attached to the super account, however if individuals are not taking enough interest in their existing accounts, they run the real risk of losing insurance benefits that are attached to other accounts as the current rules state that if a balance falls below the threshold, or no contributions are received for 16 months, insurance will lapse if the member does not opt in to retain their insurance.
I have seen some heartbreaking stories in recent times of people who have lost super entitlements due to an employer not making contributions and the member not being aware of these consequences, or not fully understanding of the insurance policy. I have also acted for members whose default insurance amounts contained within their accounts are woefully inadequate after an illness or injury.
Stapling an employee to one fund will ensure that a member does not have several accounts therefore being charged several, unnecessary fees, however the proposal fails to recognise that most people only have a very basic understanding of super at all, and many people don't even realise they have insurance within their super accounts.
So what should you do?
Take some time to understand your super accounts, look at how they perform, look at what insurances you have and understand what the insurance covers. If you have more than one fund, consider if you are better off consolidating, which fund is better for you.
When dealing with financial products such as Superannuation, if you don't understand it as well as you would like, speak with your fund or your Financial Advisor.
If you are in a situation where you have not been able to work due to illness or injury, contact us to see if you are able to access your insurance. We'd love to speak with you.
It's no secret, Social Media can be great for business. A business has so many options to create a presence on line, but as with anything even in our personal lives, the scammers just have to have a crack.
Today's blog post is simply a reminder about how easily we can get caught out, and some tips to keep you and your family safe - not just in a car crash scam context either.
I was very recently contacted on LinkedIn by a person who asked if I ran accident claims. Now for those of you who know me personally, you'd know that I tread very carefully. I politely responded that yes, our firm runs general personal injury matters, and was then met with a query of whether I accept car accident referrals. Immediately the alarm bells started to clang (not ring, this was a loud alert).
If you are not aware, in December 2019, the Queensland Government introduced legislation to criminalise "Claim Farming". This is the process where the general public were being harrassed by various entities either locally or overseas and encouraged (sometimes very strongly) to make a claim. The methods used to target individuals varied from the generic "have you been in a car crash?" through to quite sophisticated where they had somehow obtained details of persons involved in an accident. As a result of the community unrest at this intrusion, it is now illegal (yes, "illegal") for Lawyers in Queensland to pay a fee to a "car crash scammer" in exchange for the referral of the work. End result of the LinkedIn contact was that the messaging did not go any further. Our firm simply will not engage in this practice - not only for the fact it is illegal to do so, but the effects of firms taking these matters and flouting the rules are wide reaching. Public confidence plummets in our system, the costs of claims increases and naturally our CTP premiums increase, honest claimants are then locked out of the system, and it goes on. Regrettably, there are lawyers who are content to feed this system - we are not in their company.
This has also come at a time when our "office mobile" is receiving several calls a day from various entities. "Nicole from Telstra" is a frequent caller despite none of our accounts being with Telstra, "Amazon" also calls several times a week to advise of our next payment and yesterday a real person from "Visa" told me that an organisation was trying to authorise a $2,700 payment to my credit card.
These calls are obviously annoying, generally obvious and in our case, the office mobile is used solely for the purposes of making calls, there are no accounts attached to it so we know that these are scams, however all too often people are falling for the charms of the scammers.
So, how to keep yourself safe, and what to do?
When it comes to car crash scammers, you can either hang up, or as MAIC (Motor Accident Insurance Commission) has a reporting function on their website to report scam calls, you can try and obtain as many details as possible in order to report and for MAIC to identify the scammer. We encourage all of our clients and readers to report any such scam calls. This will help stamp out this process and leave a fair and equitable CTP system in Queensland. Do not give any other details to the caller, and hang up, then report.
If you haven't done this and you've been referred to a website, check the veracity of the website - is there an ABN? are there contact details other than an email form? How is the spelling and the grammar? Does it look professional? Is it consistent - eg you are in Queensland and the site refers to Queensland legislation, not NSW or a combination of. You can even go one step further and search for the business in the Business names register, or an ABR search. If you can't find the business in official and public channels, it is most likely a scam. Take some time to do some homework.
For general nuisance calls, you can listen to what they have to say. If it's an auto recording then simply hang up. DO NOT press any other buttons or say anything further. If there is a "real person" on the line, and what they are saying doesn't make sense, hang up.
I have to admit that being a lawyer comes too naturally to me and I will ask them questions which catch them off guard - eg "what was the name of that card that the organisation is trying to debit", or I have been known to throw some cross examination style questions which usually results in a hang up from their end and a fit of giggles from my family. Their easy prey is someone who doesn't ask questions.
Never, ever give out personal details on a phone call unless you are entirely sure who has called you. When in doubt, you should always ask for a reference number and a phone number that you can call them back on where someone is asking for personal details. Scammers will not do this, but genuine entities will. (Unfortunately, the Australian Tax Office is notorious for calling you and then asking you to verify your own identity - which really does raise eyebrows in todays society where scammers pretending to call from the ATO are rife).
Scammers are calling from overseas numbers, mobile numbers, local numbers and private numbers. I have noticed an increase in clients not responding to my calls when I call from a private number - hence why we now have an office mobile. It is however, a good idea NOT to answer a private number and yell profanities down the phone just incase your friendly lawyer is on the other end as one of our client's recently discovered! Thankfully we all have a sense of humour!
Really, I don't have a solution for the scam calls. They will keep coming. Be alert, if something doesn't sound right, it probably isn't. Get a number and call them back, or get them to put something in writing to you, by old fashioned snail mail. Never give personal information over the phone to a random call and if you are called by a claims farmer and genuinely have been injured in a motor vehicle accident, take the time out to consider your options. Call a dedicated injury law firm yourself and have a chat (if you call our firm, you'll even get to speak to the Principal).
When dealing with businesses - never give your bank account details by email and never pay an account from details in an email. You should ALWAYS call an organisation you are looking to pay and verbally confirm their banking details. We will NEVER ask you for your bank details by email and we will ALWAYS confirm our bank details with you over the phone.
You will never look silly for asking questions. Our office expects it, and we encourage it.
** Note, I was feeling rather sheepish for the image for this blog post.... but those cattle dogs are looking rather untrustworthy in their farming endeavours, don't you agree?!
This week Andrea has been out and about visiting clients. Whilst this doesn't sound like anything exciting, the feedback received from the clients has given some food for thought.
There are many occupations where a home visit is never given a second thought and is necessary - for example tradespeople actually working on your house, doctors offer home visits for those who need it most and some banks and finance professionals will offer house visits. But why is it that people don't seem to associate a home visit with their lawyer?
By visiting clients at home, we get to see who our clients really are, what they like, their favourite colours, hobbies they engage in and get to see projects that they might be working on and are passionate about. It's not just about going out to visit someone at home because they can't get to the office. Meeting someone at home creates a connection that you didn't previously have. In personal injuries law, where it's our job to tell our client's story to the defence and to outline how an injury has so badly impacted on their lives. It's these little details about someone that can make all the difference, like the one random step they might have in their home down to a slightly lower level that might jus be too much for them some days, or how their house might be elevated or on a hill that they used to walk daily, but can't any longer.
Clients are often more comfortable in their own homes. They have their chair that they know they can sit in for periods of time, they don't have to worry about unfamiliar environments, their pet can sit with them, or a neighbour or friend.
When the idea of Far North Injury Lawyers was being developed, we wanted to do things differently from the start. Ensuring that we offer all of our clients the chance to meet with us in their home was an important consideration. We understand that not everyone will be keen to have someone in their house, and that's ok. We want our clients to feel comfortable telling us that they don't want to or can't go out, so we are happy to jump in the car and go for a visit - especially if it means that we don't hold your claim up waiting for the next appointment.
So when we are talking about meeting for an appointment, please don't be shocked if we offer to come to you, it's just part of who we are! We can also bring the cake!
One of the hardest parts of my job as a personal injury lawyer is not being able to help. I have learned over the years that there will be times that I don't have a solution, that the 'system' doesn't have a solution and whilst I have come to terms with the fact I can't assist everyone, it is still hard having to tell someone that you aren't able to help.
I have lost count of the amount of front line, first response workers I have had in my office who have given themselves to their service and protection of the community and have paid the price by ultimately breaking down and suffering mental health illnesses as their resilience buckets could take no more. The sad reality was that for most of them, I was not able to assist, they were not eligible for workers' compensation benefits, nor were they even entitled to support services outside of their employers because the law on pure psychiatric injuries is such a high bar to meet, given the worker must demonstrate that the employer's actions, or perhaps inactions, were unreasonable. This has, historically been very hard, and often impossible for front line and emergency services workers to establish.
The Queensland Government has recently amended the Workers' Compensation and Rehabilitation Act to allow a certain group of workers, being First Responders and selected others to receive workers' compensation benefits where they have suffered PTSD as a result of their employment. It will automatically be deemed that this is work related.
It is important to note that this presumption is for certain workers and volunteers only and does not apply to everyone. This is a huge step forward to allow our front line workers to access early support and rehabilitation. It is certainly a very welcome step in my opinion.
It is a reality that most of us will need to engage a lawyer at some point or points in our lives. Most of us don't do this regularly, and the thought of who to pick for some of our most important decisions can be daunting.
Social media has made it easier to ask people, including strangers for recommendations, and gone are the days of the 'family lawyer' who was a generalist lawyer who handled all of the family affairs, and who everyone in the family went to for every legal problem. Most lawyers now take an interest in one area and they strive to do it well.
I know when I am looking for a product or a service, I will ask for recommendations from people I know and I have also been known to turn to my social media groups. I'm not just looking for who to go to, but who to stay away from, however I take all of those recommendations with a pinch of salt because I know that we all have different experiences, and we are all looking for different things, but they are important because they will form my initial opinions.
When you are faced with such an important decision as to who you chose to represent you, there are many things you should consider such as:
And my personal favourite:
A professional (be it a lawyer, or other provider) should be able to read you as a person and tailor their communication to the interaction between yourselves. You should never feel pressured to engage in services where you are not comfortable.
When picking legal services such as personal injury services that are lengthy processes and quite personal, you need to feel comfortable with who you have engaged to act for you. You do not need to engage the first person you meet with - you always have a choice. In my years as a lawyer I am still surprised at how many clients feel pressured by the hard sell at their very first appointment with the first lawyer they meet with. I am pleased to see that legal services clients are becoming more particular about who they choose to act for them.
Ultimately who you engage is a matter for you, and a decision that only you can make, but make sure that you feel that person ticks all of your requirement boxes.
Despite many employers taking great care for their employees, there are times when even the best laid plans can fail.
Injuries can be as simple as a cut finger, through to traumatic injuries requiring emergency services assistance. What you do in each circumstance will depend on what has happened.
If you have suffered what is initially classed as a 'minor injury', that is, one that might need some initial first aid, it is important to prepare an account of the event that caused your injury. Many work places, particularly larger employers will have an incident report form to be completed. Even if you have just cut your finger and simply need a Band-Aid, it's important to record the details of your injury. Your cut finger today, could be something far more serious next week either to you or to someone else.
Your employer has a duty at law to ensure your workplace is safe. You have a corresponding duty to ensure that all hazards are reported so that your employer can take steps to ensure that everyone is safe on their premises. Even if there is no formal incident report, you can simply write your own account of what happened and what injuries you suffered and request that a copy be placed on your employee file and passed on to management. Ensure you keep your own copies of these documents. Sending such information by email is helpful as that can form part of a trail to demonstrate that your employer had been put on notice of the hazard or the event.
If you need to, seek medical treatment. This can be as simple as visiting your usual GP. Your GP will take notes of what has happened and where you feel your pain. It is important that you seek medical treatment early. Don't wait a few weeks thinking things will get better. Whilst you might get better, it's important to have an independent contemporaneous account of what occurred, (that is, someone independent writing down an account close to the time of the injury). The longer you wait to seek medical treatment, the harder it can be sometimes to link your injury to your event.
Ensure that you follow up with your doctor. If your injury is minor and has resolved, it can be important to ensure that is noted in your records too.
If you do need to lodge a WorkCover claim, read part 2 of our blog that outlines the claims process.
FAQ - My Employer says I have to go to their doctor. Is this true?
Answer: To keep this short and simple, no. You have the right to see your own doctor.
Your employer may have a medical centre or medical practitioner on site and for practicalities sake, or due to the nature of the circumstances of the injury it is convenient to consult with that practitioner it would be appropriate to consult with them for initial advice, you can, and should consult with your own family or regular GP for your ongoing care.
My Employer is insisting that they can attend my medical consultations with me. Is that correct?
Answer: No. There is no 'entitlement' at law for an employer, or other third party to attend your medical consultations. There is nothing wrong with an employer asking to attend your consultations with you, however you should never feel that you must consent to them attending. In our experience, many doctors are uncomfortable when they know that employers are attending their consultations. A handful of doctors will refuse to allow them in, however these doctors are rare and most will follow your lead.
An employer has an obligation to participate in your rehabilitation process, but that does not extend to allowing them into your private consultations. Your Workers' Compensation insurer will liaise with your medical providers and your employer to determine how to best offer you rehabilitation and support.