Back Questions and Answers Physical Incapacity & Dismissal

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Questions and Answers

Introduction

The answers to some frequently asked questions on business support services are listed below. Should you require any further information about employment law, dispute resolution, debt recovery, agency legal services, commercial litigation, or alternate dispute resolution, please do not hesitate to contact one of Snedden Hall & Gallop’s experienced business support services lawyers.

Q. What are business support services?

A. This is a group of experienced lawyers who undertake work to support Snedden Hall & Gallop’s commercial clients and assist in the smooth running of their businesses. The services cover workplace law, including employment agreements, dealings with FairWork Australia and local authorities; debt recovery and bankruptcy proceedings; arbitration and mediation of disputes; and negotiations to deal with contractual and negligence issues.

Q. Don’t business support services cases usually take a long time?

A. The disparate areas of law require different approaches to achieve prompt and equitable resolutions. Snedden Hall & Gallop’s Business Services team has acquired an enviable reputation in areas of alternate dispute resolution and, as a last resort, the efficient operation of Rules of Court, including processes to expedite compulsory mediation, if appropriate. Recent successes of the team include the resolution of a large number of claims against a local defaulting investment advisor whose negligent advice dissipated the superannuation savings of a large number of elderly investors. These claims were resolved expeditiously by means of alternate dispute resolution, culminating in a three-day mediation before a retired Federal Court Judge.

Snedden Hall & Gallop’s Bill Andrews works closely with another of the firm’s directors, Richard Faulks. Richard is a member of the Civil Law Rules Committee, and this enables the team to keep up-to-date with the Court Rules, including rules affecting alternate dispute resolution, which helps with the quick resolution of commercial disputes.

Q. Aren’t business support services expensive? Will I know how much my matter will cost?

A. Before work begins on your matter, you will be given an estimate of fees and a Value Cost Agreement, which details fees that will be charged for different stages of work. You can then negotiate with your lawyer on how much or how little, and which process you would like your lawyer to pursue.

Q. Can I receive prompt on-call advice rather than take time off work to see a solicitor?

A. Yes, many of Snedden Hall & Gallop’s clients avail themselves of its lifetime service guarantee to provide updates on legal developments, reviews of their documentation and systems, and 24 hour, 7 day-a-week phone advice from its solicitors. This enables most problems to be dealt with before they become a significant obstacle in the business.

For further advice regarding areas of business support services that might assist your business, call 6285 8000.

Physical Incapacity & Dismissal - Fairwork ACT

The threat of a claim for unfair dismissal by a disenchanted employee whose employment has been terminated has provided a longstanding headache for employers wanting to maintain an efficient workplace.

For an employer to dismiss an employee lawfully, there must be a valid reason for the dismissal. The dismissal must be related to either the person’s capacity to perform his duties or to his conduct. The recent decision of FairWork Australia in the matter of J Boag v. Allan John Button provides some guidance in circumstances where an employee has a longstanding physical incapacity.

In that case, the worker was diagnosed with a hernia and placed on restricted duties by his doctor. The employer arranged for an occupational therapy assessment, which concluded that the worker’s employment should continue, but only on restricted duties. The reports and assessments indicated that the worker would have to remain on restricted duties for an indefinite period. This meant that the worker could not perform the requirements of his role in the company and the employer could not redeploy him. The employer, therefore, came to the decision that the worker’s employment should be terminated.

The worker lodged a claim for unfair dismissal with FairWork Australia and his claim was successful. However, on appeal, the Full Bench held that the inability to perform the inherent requirements (the essential activities or core duties) of a job remained a valid reason for dismissal and that, in the Boag v. Button case, it was appropriate for the Bench to examine the original duties of the worker’s position, prior to his injury, before it examined the assessment by the occupational therapists, after which it could then decide whether the worker could no longer perform his duties. The Full Bench held that the dismissal was not harsh, unjust or unreasonable and that the employer was entitled to dismiss the employee when it became clear that the employee was no longer able to fulfil his duties without their modification.