Archive for June, 2009
June 19th, 2009 | 
Author: The following Q&A’s have been provided to help you better understand Employment Law.
Q. Following the introduction of Workchoices earlier this year although I work for a company having less than 100 employees do I still have any remedies left?
A. Yes. You are entitled to bring an action against your employer where there has either been a breach of an express or implied term of your contract of employment.
Q. Although the company for whom I am working is not meeting budget the area in which I work has exceeded budget but I am being put under increasing pressure to improve output?
A. All employers have managerial prerogative but where this is unreasonably exceeded and this has been raised with them, this can constitute a breach of your contract of employment. The particular circumstances which apply are extremely important in assessing the extent to which an employee has an available remedy.
Q. I approached my employer asking could I take leave without pay and they asked me to resign on the basis that when I returned all I had to do was reapply for my old position and it would be given back to me. I did this and on my return I put in my job application and other applicants were successful and I was refused. Can my employer do this?
A. No, as any employer who does this is contractually bound to fulfil the terms and conditions of the verbal contract entered into with their employee and if they fail to do so it is enforceable.
Q. My boss came to me and asked me to admit someone to our computer network without the property authorisation. I refused to comply and ever since I have been singled out by him and serially abused, ignored and made to feel unwelcome. Is there anything I can do?
A. Yes. It appears that you are being harassed and bullied and as a result you can seek redress from your employer.
Q. I have been working with the same company for in excess of 10 years and recently a new manager was appointed to my department. He has been riding everyone but particularly myself as it appears he wishes to make changes and bring in his own supporters. I am under stress and my health has deteriorated as a result. What should I do?
A. If you are under-performing then you should address the performance issues as quickly as possible otherwise the manager may terminate your services for any of a number of reasons including poor performance or operational considerations. If it be that you are being ridden and performance-managed in an endeavour to either get you to resign or be terminated then there are a range of things you can do. They include everything from unfair dismissal to suing for breach of contract, including breach of implied terms, which are extremely important in this context. Bullying and harassment should not be forgotten and if there is any hint of some form of actionable discrimination then this should be pursued also.
Q. I was recently fired for serious and wilful misconduct because my employer thought I had taken stock without paying or accounting for it. What should I do?
A. If you have been summarily dismissed and your employer has refused to allow you to explain the situation either thoroughly or at all then you are entitled to take action against him/her either for unfair dismissal if available or breach of contract.
Q. Recently I applied for a job and after the second interview was told by the recruitment agency that I had it. Subsequently I received a telephone call stating that they needed to carry out a criminal record check and I advised them of a minor transgression which had been dealt with by the court not leading to conviction. After this things got out of control and the agency told me that my application was unacceptable to their client and I should look elsewhere for employment. What should I do in the circumstances?
A. Obviously the agency offered you a job which you accepted and they badly handled the matter when explaining this to their client such that the problem is theirs, not yours. In these circumstances you are entitled to take action but the question becomes whether this will prove to be cost effective and will the amount to be obtained either as compensation or damages be sufficient in the circumstances.
Q. I am currently working for a very intense person who is overbearing and difficult who constantly threatens and swears at everyone yelling at them and standing over them unfairly pushing them to do as much work as possible. What should I do in the circumstances?
A. Given the type of work environment it is obvious you have a right to proceed against your employer for bullying and harassment. Not only are you able to do this under the general law but if it is having an impact on you there may be issues associated with the Occupational Health and Safety Act as well.
Q. I work for a government department and believe they are trying to get rid of me saying that my size interferes with my ability to carry out my work. I feel uncomfortable, as I believe I am being set up and the union is also involved. What can I do in these circumstances?
A. As you know with all government departments there are fixed procedures which need to be followed and if they are not issues such as the lack of procedural fairness will arise. In all of these cases it is important to find out what your employer is planning and should they invite you to attend a meeting to discuss your future then make a request of them that you be allowed to bring a support person with you, preferably your solicitor. Normally this would be agreed to and it is a far better way to proceed as your employer will have at least two people in the room when you are interviewed. Government departments normally follow a very lengthy process before an employee’s services are terminated.
Q. I was formerly employed by a company which has gone into liquidation owing me approximately $12,000 in unpaid wages. Is there anything I can do about this?
A. The best thing you can do would be to approach GEERS and see whether you are entitled to some form of compensation from them. Of course they will require proof of your entitlements and the best way to do this is to furnish them with whatever pay slips you currently hold. If you have lost or destroyed these documents then you will need to approach GEERS as to what other forms of proof they will accept to validate your entitlements.
Q. Since the Federal Government introduced Workchoices I am really confused as to whether there are remedies apart from the Workchoices legislation?
A. Most people are aware that provided you are working for a constitutional corporation the landscape for unfair dismissal claims has changed markedly. If you work for a company which has less than 100 employees then unfair dismissal is no longer an option for you whereas where you are working for a company with more than 100 employees then you are entitled to bring an action for unfair dismissal or unlawful termination provided you are a full time employee. In addition claims which can be made include breach of contract, breach of the Trade Practices Act, misrepresentation and anti-discrimination.
Q. I am having a number of issues with my boss at work due to his behaviour as he frequently swears, writes threatening emails, bullies, sets unreasonable deadlines and is trying to performance-manage me out of the operation. What can I do?
A. Obviously if you have been with your employer for some years and provided your earlier performance is in contra-distinction to what he is now saying then you would have a number of legal remedies available to you. It is essential in cases like this to make sure that you do everything possible to acquit at work to avoid criticism. Remember you can retain a solicitor to intercede with your employer and if this does not work then pursue your legal remedies.
Q. I was hired by an accountancy firm and terminated without notice without any reason given for my dismissal. Do I have any right of recourse?
A. Yes. Generally speaking the courts take an extremely poor view of someone being terminated without just cause and where no reason has been supplied. Obviously you need to see a lawyer to make sure your position is fully protected.
Q. This year I went to an office function and become a little untidy. Whilst I was taking photographs a girl lent over in front of me and I took a shot of her cleavage. After sobering up I suddenly realised there could be issues and I discovered that one of the persons to whom I had sent all the photographs including the one of the girl, had circulated this to everybody in the office. What should I do?
A. The first thing is to go and apologise to the girl and make sure there is no ill will between you. Next you should explain to your employer what your circumstances are and apologise to them for any inconvenience or problems that might result. Provided this works there should be no complaints of sexual harassment and the matter should die a natural death. If the matter escalates then you may be in trouble for serious and wilful misconduct and your services terminated.
Q. Recently I was retrenched and given one month’s pay in lieu of notice together with my current month’s salary. Unfortunately I was not paid for my annual leave or my current bonus which it vested and my unvested bonus which is now due and payable. What should I do?
A. You are entitled to take action to recover these outstanding monies, the only issue may be in regard to the current bonus which was not vested at the time your services were terminated.
Q. Approximately two years ago I joined a car dealership which is rather old-fashioned in the manner in which it transacts business between the finance and sales departments. An insurance provider suggested to the management that I was not doing my job properly and as a result I have been reprimanded being held responsible for the poor performance of my area which is ludicrous as the sales for this year in my area are the same as last year when the market was booming. What should I do?
A. As both departments have not been integrated it is hard to see how you could be blamed for this situation, particularly as the downturn was in new car sales and not insurance products which are performing in line with the previous year. It seems that your department must be more effective this year than last as you must be converting more deals this year to maintain last year’s figures. Irrespective you need someone to intercede on your behalf with your employer to cogently put your point of view and if they are unaccepting of this and your services terminated then you should proceed against them for unfair dismissal and look at what reasonable prospects you may have of proceeding against the insurer for defamation.
Q. I have been with the company as a permanent-casual in excess of 10 years and am wondering whether or not I can make an application to become a permanent employee?
A. Yes. Any employed person who has been working continuously and systematically for an employer for either 6 or 12 months is a deemed permanent employee and all that has to be done is to make application to the employer to convert your status. If anything negative transpires approach a lawyer to enforce your rights.
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This article explores the different types of uncontested divorce in Rhode Island and explains the process of obtaining an uncontested divorce. Uncontested divorces should be much less expensive then contested cases. Article by Attorney David Slepkow 401-437-1100. It is a bad idea for someone to try to represent themselves without a Rhode Island lawyer in a divorce or family law matter.
The phrase “uncontested divorce” often means different things to different people. In my ten years of experience, I have seen many different types of cases in which people claim that the divorce is uncontested.
There are three different paradigms that I have seen:
1) No assets and no children
This is a true uncontested divorce! The parties have no assets, no real estate , no children and no joint debt. No property settlement agreement is needed. However, a significant amount of work is still required by the lawyer. The parties still must go to court for a nominal divorce hearing. However, this type of divorce takes the least amount of time for an attorney. Therefore, it should be less expensive. I believe that attorneys should offer flat a fee divorce when there are no assets and no issues to resolve.
2) Property division and / or children involved
In an uncontested divorce, the husband and wife agree to all or substantially all of the issues between the parties including if applicable property division, child support, child custody, child visitation, alimony, automobile issues, real estate issues, debt issues etc. However, despite the agreements, there may still be details to iron out! The parties may need a property settlement agreement memorializing their agreements.
If there are assets that need to be divided then the family law lawyer may need to prepare a property settlement agreement, deeds, mortgages, promissory notes, qualified domestic relation orders (QDRO) etc. For example, if the parties need to divide a retirement account the lawyer must prepare a qualified domestic relations order.
Therefore, the cost of the divorce could vary depending on the circumstances. For example if a lawyer has to draft a property settlement agreement than he/she will devote more time to the case.
What extra work is needed to divide a retirement account?
In order to split a retirement account, Individual Retirement Account (IRA), pension, 401k, 403b, defined benefit plan, defined contribution plan or stock options, the lawyer must prepare a qualified domestic restraining order otherwise known as a QDRO so that there are no tax implications for the parties. That QDRO must be approved by the plan administrator for the retirement plan. It also must be entered as an order of the Family Court as well as sent to the plan administrator for implementation.
3) “Uncontested” divorce which is really “minimally” contested
Some people claim that the divorce is “uncontested” but it is actually minimally contested. In this scenario, the parties agree to most major issues but have some minor issues to work out. For example, the parties may agree that there will be reasonable visitation but not agree as to the actual dates and times. The parties may agree to child support or child custody but not agree to all the particulars. The parties may agree that the marital domicile is to be sold as soon as possible by a Licensed realtor but have not agreed on the listing price of the home or have not agreed how the proceeds from the sale will be divided.
This type of case is usually more expensive than a true uncontested divorce because the lawyers will have to get more involved in negotiation and attempting to work out the points of contention. Furthermore, the Lawyer may need to draft a property settlement agreement setting forth in writing issue concerning the marital domicile, equitable division of property, child custody, child support and visitation issues.
4) “Uncontested” divorce which really is contested
I have seen countless times when a client says that the divorce is uncontested. I then ask them to explain the agreement. The response is sometimes: ‘we agree that we will agree’. As we all know, the devil can be in the details! An agreement to agree is not necessarily an agreement because nothing has been agreed to except that the parties think that they will agree.
Often people claim that the actual divorce is not being contested. Whether or not a person will dispute the obtaining of the actual divorce is immaterial because Rhode Island is a “no fault” state. If one party wants to terminate the marriage and meets the residency requirements they can obtain a divorce whether or not the other party agrees to it or not.
Intake process, drafting divorce documents for filing and filing
There is typically an intake process in which the lawyer gets the basic information so that he or she can properly represent you. The attorney typically drafts the documents and you sign them in front of him/her or another notary. These documents include a complaint, DR(6) financial statement, statement of children of the marriage, counseling statement, summons and automatic divorce order etc.
It is important that the DR6 form otherwise known as financial statement is accurately filled out.
After the documents have been signed and notarized, the case must be filed. A Court date of approximately 65 days will be set by the Court. The Defendant must be served by the constable. If the Defendant lives out of state he or she can be served by certified mail
Nominal or Contested Track
When a divorce is filed, the case is put onto one of two tracks, the contested track or the nominal track. The Plaintiff in his or her initial filing designates the track they desire. The vast majority of divorces filed are placed on the “nominal track”. An uncontested divorce should be put onto the nominal track. Designation on the “nominal track” does not necessarily mean that the divorce will be uncontested.
If the case is put on the nominal track then the clerk will automatically set a nominal divorce hearing upon the Plaintiff filing. This hearing will typically be scheduled from 65-70 days after the Plaintiff files. In the event that the case is not settled by the nominal divorce date then the case will automatically be changed to the contested track
On the date of the nominal hearing, at the call of the calendar, the case will be either ready nominal or the parties will ask the judge to hold the case so they can try to resolve any remaining issues. If the parties cannot resolve the remaining issues they will inform the Court clerk or the judge that the case cannot be settled and the case track will be changed to the contested divorce track. If the case track is changed there will be no hearing that date and the court will inform the parties of a future conference date.
A hearing is required under RI law!
Pursuant to Rhode Island General Law a divorce cannot be resolved without a nominal hearing. At the nominal hearing certain testimony must be elicited in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses to briefly testify to prove residency. If you don’t have the required witnesses your case could be delayed or even dismissed and you may waste your time attending court.
Residency in RI
Is it necessary to prove compliance with the residency requirements at the “nominal hearing” in order to obtain an uncontested divorce? Yes!
In order to file for divorce you need to have been a domiciled inhabitant and resident of Rhode Island for one year prior to your filing of the complaint. If you have not been a domiciled inhabitant and resident of RI for one year prior to filing your complaint for divorce, you can file based on your husband’s / wife’s residency for one year prior to the filing. It does not matter if you change your residency or move out of town the next day so long as you were a resident on the date of the filing and for one year prior!
(There are exceptions for people in the armed forces (army, navy, air force, marines, military) who are stationed in other states or countries)
Proof of Residency
In order to prove residency, it is sufficient, if both parties appear at the nominal court date and testify that at least one of the parties was a domiciled inhabitant and resident of Rhode Island for one year prior to the filing of the complaint for divorce. The Family Court will typically waive the requirement for additional witness if both husband and wife attend the nominal court date and testify that at least one party had the requisite residency as set forth above.
If only one party attends the nominal court date then you need one of the following in order to obtain a divorce (a) two additional witnesses in court to testify to the one year residency of the Plaintiff or Defendant (b) one witness in court to testify to the one year residency of the Plaintiff and an affidavit from a different witness attesting to the person’s residency. (This affidavit form can be easily obtained by the clerk of the Rhode Island Family Court.)
If you do not meet these requirements to prove residency your case may be dismissed or you may be given additional time to obtain the necessary witnesses or affidavit
What County in the family Court should the case be filed in?
Please note that all the counties in Rhode Island (Providence, Kent, Newport and Washington County) follow the same general rules and procedures. However, each County has different Summons. Make sure that your divorce case is filed in the appropriate County. At least one of the parties must reside in the County in order to file in that County. In Some Counties the same judge will hear the entire case.
In Povidence County, the nominal hearing will usually be sent to a magistrate. Providence County includes East Providence, Providence, Cranston, Cumberland, Barrington, Bristol and other towns and cities. Kent County includes Warwick & East Greenwich as well as other towns. Newport County includes Newport, Middletown & Portsmouth. Washington County includes South Kingstown, Wakefield etc.
Is representing myself “pro se” a good idea?
Pro se is a latin word which means a person represents themselves. Most Rhode Island divorce and family law attorneys have done these nominal hearing hundreds of times. It is a very bad idea for a person to represent himself or herself in a divorce! As the old adage goes a person who represents themselves has a fool for a lawyer. Since everything you have worked so hard for is on the line it is foolish to go through the divorce process without a family law lawyer.
Documentation to finalize process
After the nominal Court date a Decision Pending Entry and Final Judgment must be submitted to the Court and signed by the Judge. Without a final judgment signed by the judge and entered as an order of the Court, the divorce will not be final and you will remain married.
It has recently been announced by the law firm Halliwells that it has auctioned off around 90 per cent of its bulk conveyancing venture, previously known as HL Interactive LLP, to a management buy-out team for an amount, which is yet to be disclosed to the public.
Such a deal was decided upon as the result of a 5 per cent drop in profits, which took what had been a rising profit, down to £83 million for the company’s most recent financial year, ending April 30th, 2009.
The team that jumped in and bought them out was run by HL Interactive’s chief executive, Matt Wightman, and was also funded by the Co-Operative Bank. Halliwells have not completely backed away from their previous work, and are keeping a 10 per cent equity stake in the business as well as appointing the former head of Royal Bank of Scotland’s retail operations, Mike Hutchins as chairman.
Mr. Wightman, who was previously in charge of the financial institution’s group at Halliwells for nearly ten years before he began to set up HL Interactive in 2004, said he felt that HL Interactive had “a strong brand and an excellent reputation”, which means dropping conveyancing should not be seen as any irreparable failure.
“There are significant opportunities to increase our market share through organic growth and strategic acquisitions,” he said.
The MBO team at HL Interactive were also given pointers from the accounting firm Alexander & Co and the law firm George Davies, which should be incredibly helpful to them at this stage.
Upon being questioned about the firm’s results, managing partner Ian Austin spoke of how he felt Halliwells, as a company had dealt with a “challenging” year and had taken it well, were sadly expecting more of the same in the coming times.
“The firm, however, has a very solid foundation and is ready to meet those challenges and develop the business further.”
He said he felt that the business had experienced an impressive rise in its insurance and commercial litigation departments, areas in which the combined fee income has built to more than £34 million. The company also acquired AXA Insurance, Legal & General, Sheffield Forgemasters and United Utilities as clients.
“During the year, the firm has reviewed its costs and, as is the case with many businesses, undertaken certain measures to reduce costs. We will continue to monitor the marketplace closely,” he said.