A common question of employers is, ‘what are my rights when an employee resigns without giving the required notice?’ The answer is that an employer may be entitled to claim a deduction from an employee where minimum notice requirements have not been fulfilled by the resigning employee.

A common question of employers is, ‘what are my rights when an employee resigns without giving the required notice?’ The answer is that an employer may be entitled to claim a deduction from an employee where minimum notice requirements have not been fulfilled by the resigning employee.

A common question of employers is, ‘what are my rights when an employee resigns without giving the required notice?’ The answer is that an employer may be entitled to claim a deduction from an employee where minimum notice requirements have not been fulfilled by the resigning employee.

Please note that the information contained in this article is a case note and is not intended to constitute legal advice. A case study of Somerville v Club Méditerranée Australia Pty Ltd GEN 20/43068 and Somerville v Club Méditerranée Australia Pty Ltd [2021] NSWCATAP 194. Salerno Law Salerno Law regularly provides legal advice to corporate and commercial clientele operating within the travel and tourism sector, including advice about the legal impact of Coronavirus 2 (SARS-CoV-2) and its associated disease (“COVID-19”). The Impact of COVID-19 on the Tourism Industry The global outbreak of COVID-19 has resulted in the underlying policy and terms and conditions that travel and tourism companies rely upon throughout the course of conducting their enterprise, having to undergo radical change and restructure to either include a “pandemic” clause or amend their pre-existing “force majeure” clause to be more robust. Somerville v Club Méditerranée Australia Pty Ltd GEN 20/43068 In a recent landmark case, Salerno Law was instructed to act on behalf of the Respondent in the New South Wales Civil and Administrative Tribunal (“NCAT”) proceedings whereby Mr Somerville (“the Applicant”) was seeking a refund for an “all-inclusive” holiday that he had booked for himself and his family with Club Méditerranée Australia Pty Ltd (“the Respondent”). The relevant context and history of Somerville v Club Méditerranée Australia Pty Ltd GEN 20/43068 are as follows: In February 2020, the Applicant paid a deposit of $70,873 (“travel funds”) to his travel agent for the purposes of booking a holiday (including return airline flights) from Australia to Bali; The travel funds were then forwarded to the Respondent who would book the land portion of the holiday and also make arrangements for the flight portion of the holiday (“airline tickets”) with Virgin Australia; $45,051 was the amount referable to the land portion of the holiday; $25,822 was the amount referable to the airline tickets; Upon receipt of the confirmed airline tickets, the Respondent provided the tickets to the Applicant’s travel agent who in turn, provided them to the Applicant; As a result of the COVID-19 pandemic, on 24 March 2020, the Australian Government implemented a “do not travel” ban on Australians travelling overseas under the Biosecurity Act 2015. This prohibition was aligned with the Australian Government’s decision to raise the “Smart Traveller Advice” to level 4, being “DO NOT TRAVEL OVERSEAS”; On 20 April 2020, Deloitte were appointed as administrators of Virgin Australia pursuant to the provisions of Section 436A of the Corporations Act 2001; On 29 May 2020, the Respondent issued a cancellation notice for the holiday to the Applicant’s travel agent and provided notice that due to the travel restrictions, the Applicant’s holiday was unfortunately cancelled; On 11 June 2020, the Respondent issued the Applicant a full refund for the land portion of the holiday (in the amount of $45,051); The Respondent could not issue a refund for the flight portion of the holiday (in the amount of $25,822), as these funds had already been provided to Virgin Australia, and the [...]

From November 2021, company directors will be required to apply for and authenticate their identity through a Director Identification Number (DIN). A DIN is a 15-digit identification number used to identify a director (and alternative director) when applications open in November 2021. By the Federal Government passing the Treasury Law Amendment (Registries Modernisation and Other Measures) Bill 2019, which saw the introduction of the requirement coupled with a new Commonwealth Modernising of Business Registers (MBR) regime, the MBR program has established the Australian Business Registry Services (ABRS) which will attempt to streamline how businesses register and maintain their information with the Government. The intended purpose of the DIN regime is to deter and tackle illegal ‘phoenixing’ activities in circumstances where directors deliberately avoid paying liabilities by winding down an insolvent company and transferring its assets to a newly incorporated entity. By increasing director accountability and traceability, the introduction of DINs will allow for stronger regulation upon directors and enable the Australian Securities Investments Commission (ASIC) to prevent and hopefully stop illegal phoenixing. Directors will only be required to make one application, for a DIN, which will stay with them for life, irrespective of whether they become a director of another company, cease bring a director and/or the changing of their personal name in preventing illegal phoenix activity.   Who is required to hold a DIN? A DIN is required by an individual if they are a director of: A company registered under the Corporations Act 2001 (Cth) (Corporations Act); An Aboriginal and Torres Strait Islander corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act); and A Charity or Not-for-Profit registered under the Australian Charities and Not-for-Profit Commission (ACNC).   How do directors apply for a DIN? Directors can apply for a DIN via the ABRS website, however, before doing so, directors will need a myGovID number. Should directors fail to apply for a DIN by the designated timeframe, they face possible infringement notices and/or civil and criminal actions from ASIC. When do directors need to apply? Applications for DINs for existing and new directors can commence from November 2021 as follows: Salerno Law has a talented commercial law and litigation team which can assist with the DIN requirements and their rollout upon company directors. Should you have any queries regarding the DIN requirements, Alexander Phillips and Matthew Krog would welcome the opportunity to discuss them.   By Alexander Phillips DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information.   Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.

On 27 March 2021 the Fair Work Act 2009 (Cth) (the Act) introduced new permanent employee benefits for existing casual employees, defining the transition as ‘casual conversion’. The Act, amongst other things, provided employers six (6) months to adhere to the introduced amendments, which are due to come in to effect next week, on Monday 27 September 2021. From 28 September 2021, employers are legally obliged to offer casual conversion to casual employees who qualify. What is casual conversion? Subject to eligibility, casual conversion provides casual employees permanent employee benefits, where casual employees are entitled to convert from casual employment to part-time or full-time employment. What are my obligations as an employer regarding casual conversion? All employers who employ casual workers should familiarise themselves with these new laws, and ensure they undertake their assessments by Monday, 27 September 2021. Along with making the assessment, employers must provide their casual employees with a copy of the federal government’s Casual Employment Information Statement. Small Businesses If your business employs fewer than 15 people, then you do not have to offer casual conversion, but casuals may make the request should certain requirements be met. Casual employees do not have to wait until 28 September 2021 to make this request. Other Businesses As an employer, you must offer casual conversion if: a) You’ve employed the worker for more than 12 months; b) The employee has worked a regular pattern of hours for 6 months; and c) The regular hours could be continued with the employer becoming a permanent employee without significant changes. When don’t you have to offer casual conversion? a) You have reasonable grounds to not provide the casual conversion; and b) The casual employer is not eligible for casual conversion. The above is subject to relevant awards and employment contracts, which may outline different casual conversion eligibilities. As a Casual Employee, can I apply? From 28 September 2021, you can make a request to your employer to become a permanent employee if: a) You’ve been employed for at least 12 months; b) You’ve worked a regular pattern of hours in the last 6 months on an ongoing basis; c) You haven’t refused a previous offer to become permanent in the last 6 months; d) Your employer hasn’t told you in the last 6 months you won’t be offered casual conversion on reasonable grounds; and e) Your employer hasn’t already refused a request made on reasonable grounds in the last 6 months. These requests must be made in writing and can only be made 21 days after the annual date of working for the employer for 1 year. The employer has 21 days from receipt of your request to respond, and they may only refuse the request after having discussions with you and providing you reasonable grounds as to why they refuse. Another request may be made 6 months after the refusal, provided the above requirements are met. What are the consequences of not offering casual conversion? Employers may be met with various [...]

All persons involved in operating a business need to know what is in store for them when the Work Health & Safety Act 2020 WA commences operation in early 2022. It will make important changes to existing Workplace Health & Safety (WHS) laws and impose an industrial safety regime powered by criminal offences. It will cast a very wide net on who is responsible for WHS. It goes further and makes some acts of discrimination criminal offences. Many clients ask us: What is the WHS legislation in WA? Who is liable for workplace accidents and death? How can I improve my WHS issues? This is what you need to know as a business owner in Western Australia. When do the Western Australia Work Safety Law changes commence? The commencement date is unknown as it depends on various modules specifying standards being finalised with industry. The latest update from the WA government is the aim for commencement is early 2022. There should be good notice between providing the standards to commencement date. Who is responsible now for WHS in workplaces? The primary duty of care is imposed on any person “conducting a business or undertaking”. This is then extended to “an officer of the person” who must exercise due diligence to ensure that person complies with their primary duty of care. Due diligence includes: - be up to date with WHS knowledge; - understand the business or undertaking operations and risks or hazards of that operation; - ensure person carrying out the business has sufficient resources to carry it out safely; - the processes being used are appropriate and being followed in practice. Workers and others involved in the business also have WHS obligations, but without criminal sanctions. What are the penalties? The most serious penalties apply to persons carrying on a business (and officers with responsibility for such persons) which leads to the death of a person due to their failure to comply with work health standards. These penalties include a maximum jail term of 20 years and a fine of $5 million for individuals and $10 million for companies. This means directors of even the largest companies now face criminal charges where their businesses fail safety and cause death to a worker. Discrimination, Coercion and Misleading Conduct are now crimes: Where a business discriminates or acts in breach of their duties under the Act in relation to a person being involved in WHS duties or seeking to raise a WHS issue, that conduct can be determined to be a criminal offence and punishable as an offence. Large fines apply and orders can include reinstatement of the worker and compensation. Has anyone gone to jail for industrial manslaughter? Yes, there have been successful prosecutions under current laws in WA, and new industrial manslaughter laws in Qld, with directors being sentenced to jail for breaching WHS laws leading to the death of workers. It is expected that prosecutions seeking jail would be for clear breaches by management which ought to have [...]

Buying or selling a rent roll is more complex than the purchase or sale of most small to medium businesses. There are many unique issues, hurdles and pitfalls that can confront an inexperienced person. Obtaining the right legal advice is therefore critical to avoid potentially costly mistakes and unnecessary stress. A solicitor who is inexperienced in this field can hold up the time it takes to finalise a draft contract as they may not be familiar with some of the important terms or conditions in a rent roll contract. Terms and conditions, such as: the optimum amount for retention, retention dates, multiple settlements, restraints of trade on the seller, employees and directors if seller is a corporate buyer, clawback claims on the retention for lost properties, calculation of the purchase price based upon a fluctuating asset, whether the sale is the sale of a going concern and GST free. There is always the danger also that an inexperienced solicitor may require changes to a rent roll contract which may unintentionally create problems for lenders who are familiar with the rent roll contract in question. For these reasons, it is prudent to deal only with solicitors who have specific and extensive experience in real estate and rent roll transactions. Many legal web sites make claims that are difficult to substantiate before giving instructions. So how do you determine whether a solicitor is the right one for you before engaging them?  Look for a solicitor with extensive experience in business conveyancing, and in particular the sale or purchase of rent rolls. Find out what you can about the firm and the solicitor who will be handling your matter. What credentials do they have and how long have they been in business? Will the solicitor will be personally available if you have any questions or queries?             Liability limited by a scheme approved under professional standards legislation Below is a list of the types of businesses in which Damien has acted for clients: Aquariums & Accessories Arts & Crafts Backpacker Accommodation Bakeries Bicycles Retail Boarding Kennels Butchers Cabinet Makers Cates/Coffee Lounges Cakes & Pastry Car Rentals Car Window Tinting Car Detailers Caravan & Tourist Parks Chiropractors Child Care Centres Confectionery Business Commercial Cleaning Contractors Commercial Line Marking Business Dance Schools Dentists Desktop Publishing Dog Kennels Dress and Clothing Boutiques Dry Cleaning and Laundry Excavator & Earth Moving Fast Food/Snack Bars/Takeaways Fencing Business Fish & Chip/ Pizza Take Away Floor Covering Business Florists Food & General Franchises Food Distribution Fruit Juice Merchant/Distribution Gyms/Health & Fitness Centres Holiday Accommodation Hotels/ Motels/Taverns Hair/ Barber and Beauty Salons Landscape Supplies Magazine Distributors Manufacturing Businesses Management Rights Mechanical Car Repairs Medical Practices Milk Runs Mobile Catering Motor Car Cleaners & Detailers News Agencies Nurseries Optometrists Painting Contractors Pawnbrokers Personal Trainers Pet Shops, Pet Care & Grooming Petrol Stations Photo Copying Printing Pharmacies Photographic Equipment & Supplies Post Offices Restaurants/Licensed Restaurants Retail Stores Retail        Automotive        Parts        & Accessories Real Estate Agencies/ Rent Rolls Second Hand Book Stores Shade Structures [...]

Your business needs to be structured correctly from the outset by ensuring you, your accountant and your lawyer are all on the same page about what structure is appropriate for your business, to minimise personal risk and to set the business up on the best footing for future growth and success. Your structure must be documented clearly and correctly prior to the purchase or formation of the business. If you have business partners, then a written Shareholders Agreement, Buy-Sell Agreement or Partnership Agreement (depending on your structure) is essential. This ensures everyone is clear about their respective rights and obligations in the operation of the business and also potential exit-arrangements for the future. Registering a trade mark over your business' name, logo and slogans will give you rights against competitors who try to use something identical or similar and will also add value to your brand. The more you do to protect your intellectual property at the earliest possible stage, the more protection you will get. Having a well drafted set of Trading Terms and Conditions for use with your customers/clients that are tailored to your business will make it clear when you will be paid, the ways you can secure payment and the rights you have if you are not paid on time. In addition, such Terms and Conditions can be relied on if any disputes/misunderstanding with customers/clients arise. Furthermore, such Terms and Conditions are required to address obligations on businesses such as dealing with customers'/clients' personal data, privacy policies, refund and cancellation policies, what jurisdiction will deal with any disputes, etc. Your business will generally have numerous Contracts (both written and verbal) in place with suppliers of goods and services. These should always be in writing and either be drafted by your lawyer, or otherwise carefully reviewed by your lawyer before signing. Ongoing supply Contracts need to reflect the terms you have agreed to (and are expecting) in order to minimise disputes arising in the future. Normally such Contracts are heavily weighted towards the supplier. However they can, and should be where possible, negotiated to be more beneficial towards your business. Salerno Law specialise in Commercial and Business Law and are able to provide first class, prompt and efficient advice to business owners throughout Australia. We are here to help. Speak to us today.   By Luke McKavanagh Luke is part of Salerno Law's commercial and business law team. His days involve providing advice on a wide variety of commercial issues that arise in operating small to medium businesses, where he assists clients who are growing their business or wanting to protect what they’ve established.   DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information.