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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Sometimes referred to as 'adverse action', General Protections are provisions in the Fair Work Act 2009 (Cth) which protect employees (including prospective employees and in some instances independent contractors) from having adverse action taken against them for the exercise, or threatened exercise, of a Protected Attribute.

A Protected Attribute can include a wide number of attributes. Generally speaking, a Protected Attribute will include an employee entitlement to any benefit provided by a Modern Award, Enterprise Agreement, Contract of Employment or the Fair Work Act 2009 (Cth). For example:

  • An entitlement to annual or long service leave
  • Temporary absence from work because of illness or injury
  • A right to make a complaint or inquiry in relation to employment, say, by making a bullying complaint or an OH&S complaint
  • Making a request for flexible working arrangements
  • Lodging a claim or complaint with the Fair Work Commission.

An employee also has a number of other personal attributes that constitute Protected Attributes, such as an employee's race, sex, sexual orientation, age, marital status, political opinions and religion. Accordingly, no decisions about employment can be made with reference to any of these attributes.

What is Adverse Action?

Broadly speaking, adverse action is any action that reduces, injures or harms an employee's employment. For example, adverse action can include:

  • Dismissing or demoting an employee
  • Taking disciplinary action, such as suspending an employee or placing them on a Performance Improvement Plan
  • Treating an employee less favourably than you would otherwise treat your employees
  • Refusing to employ a prospective employee.

When is a General Protection law breached?

As an employer, you are, of course, entitled to make changes to your workplace that may have adverse repercussions on an employee's employment.

However, a General Protections breach may occur if such adverse action is taken because of an employee's exercise, or threatened exercise, of a Protected Attribute.

For example:

  • Dismissing or demoting an employee because they are engaging in lawful industrial activity or are on annual leave
  • Placing an employee on a Performance Improvement Plan because they made a bullying complaint
  • Not employing a prospective employee because of their political opinions or religion.

Remember, a General Protections breach can still occur where the exercise or threatened exercise of a Protected Attribute was one of a number of reasons for the employer taking adverse action against an employee.

Other Risk Factors to Consider

Unlike an unfair dismissal claim (in which compensation is limited to a maximum figure equal to six months of an employee's annual salary), compensation payable as a result of a General Protections breach is uncapped. Furthermore, such compensation may also include a component for the hurt and humiliation suffered by the employee. Accordingly, the amount of compensation could be very significant indeed.

In addition, and as opposed to unfair dismissal claims (where the standard onus of proof applies), a General Protections claim implements a reverse onus of proof.

In practice, this means that, once an employee alleges a General Protections breach, the employer has the burden of proving that the General Protections breach did not occur. In other words, the Fair Work Commission will presume that a General Protections breach occurred unless the employer can prove otherwise.

What can I do to avoid a General Protections Claim?

Be consistent in your approach with employees! This cannot be overstated. Key to limiting risk is ensuring you comply with company policies and procedures when dealing with employee complaints.

Furthermore, when contemplating taking some sort of adverse action against an employee, understand exactly why you are taking such action. If you find yourself taking into consideration someone's race or religion, re-evaluate your motive. Make sure your reasons for taking such action are clear, valid and properly recorded. Applying a careful, well considered process over time is so much better and safer than "shooting from the hip."

How can Sharrock Pitman Legal help me?

Finally, always seek legal advice prior to dismissing, demoting or suspending an employee. Our job as lawyers is to look out for these additional risk factors and ensure you do not inadvertently get yourself into trouble. You can save yourself a lot of expense, time and trouble in doing so. Our advice and assistance will always be practical and provide you with options as to the safest possible strategy moving forward.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Mitchell Zadow

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

More on

Employment Law

Sometimes referred to as 'adverse action', General Protections are provisions in the Fair Work Act 2009 (Cth) which protect employees (including prospective employees and in some instances independent contractors) from having adverse action taken against them for the exercise, or threatened exercise, of a Protected Attribute.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.