Social Media – Defamatory comments on posts – Who is responsible…

An interesting read on ABC News by Elizabeth Byrne, the High Court of Australia is expected to rule on what could be a line in the sand for ‘publishers’ and their responsibilities around defamatory comments posted to online articles. What do you think?

Article extract –

Some of Australia’s biggest media outlets will learn today whether they have won a High Court bid to distance themselves from Facebook comments at the heart of defamation action by former Northern Territory detainee Dylan Voller. The image of the young detainee, shackled to a chair wearing a spit hood, first shown by the ABC’s 4Corners program, captured the nation’s attention.

It sparked a Royal Commission into youth detention in the Northern Territory.  It was big news in Australia, but not all of it was welcome, with stories from the media outlets posted on Facebook drawing all kinds of comments from the public. The former detainee, Dylan Voller, is now hoping to sue outlets including The Sydney Morning Herald, The Australian, the Centralian Advocate and Sky News for publishing defamatory Facebook posts about him.

But his case against them in the NSW Supreme Court has stalled, after questions arose over whether the outlets were considered the publishers of the Facebook comments, which were posted in reply to articles written between July 2016 and June 2017.

It is an important question being considered by the High Court, which may have implications for how media operations manage platforms like Facebook in the future.

Read the full article here –  ABC News – Full Article

What do you say?

 

 

Self-Recusal

An interesting article published yesterday in The Guardian by Nino Bucci raises an interesting topic for consideration and we are interested in your thoughts…what do you say on whether or not the judge should have excused himself from the hearing. The High Court of Australia will ultimately decide but what do you think? Read the article on the link below

https://www.theguardian.com/law/2021/aug/18/australian-judges-should-not-be-able-to-rule-on-self-recusal-review-told

Extract from the article;

“Judges should not be able to rule on applications to recuse themselves as it “demands an impossible level of impartiality”, a leading human rights legal service has told the Australian Law Reform Commission.

The commission is reviewing the laws in relation to judicial impartiality as a result of a case before the high court that involves the conduct of a judge and a barrister who maintained personal contact during a trial. The judge in that case denied an application to recuse himself.

The National Justice Project, a not-for-profit human rights legal service based at Macquarie University and directed by George Newhouse, said in a submission to the commission that the process of self-recusal should be abolished…”

 

RSPCA Cupcake Day

RSPCA Cupcake day is on 20 August 2021.

 On this day, we donate to fight against animal cruelty. Such funds will assist in rehoming animals who have been a victim of cruelty.  Animals are an integral part of our day to day lives. They bring us so much joy and unconditional love.

 Australia has one of the highest rates of pet ownership in the world. They share our homes and win our hearts. They are even members of our family. We all owe them duties of their welfare and care which is regulated by the Prevention of Cruelty to Animals Act 1979 (NSW) and Companion Animal Act 1998 (NSW).

 As a personal injury lawyer, I have done various disputes dealing with the payment and training of therapy pets. In addition, I assist many injured workers with psychological and physical injuries who require a therapy animal. 

 Pursuant to Section 60 of the Workers Compensation Act 1987 (“the 1987 Act”), if a worker receives an injury and requires treatment and rehabilitation that is reasonably necessary, the worker’s employer is liable to pay. An assistance dog may be reasonably necessary medical treatment within the meaning of Section 60. of the 1987 Act. 

 I assist many police officers, emergency personnel and corrective service employees who sustain PTSD during the course of their employment. A pet can be a benefit to an injured worker’s mental state. A dog, for instance, can bring so much happiness to those suffering from mental illness. 

 To finish on a pawwwfect note or should I say as I am a cat lady purrrrfect note, at Don Cameron & Associates, we have a variety of pets as seen in the attached graphic.

If you require any assistance or would like to discuss your Workplace Rights and or Compensation, contact Don Cameron & Associates today. Call 1800 627 373

Workers Rights in the ‘Gig Economy’

On September 27th, 2020, Dede Fredy died when he was hit by a car in Marrickville. Mr Fredy, an Indonesian national, was delivering food for Uber Eats to provide for his wife and four-year-old son in Bali.

Two days later, in the Sydney suburb of Zetland, Xiaojun Chen was hit by a bus whilst riding his motorbike for food delivery company Hungry Panda. He left behind his wife, two children and two disabled in-laws for whom he was the primary breadwinner.

So began a horror two-month period where five people died whilst working for food delivery companies. Bijoy Paul, an engineering student from Bangladesh, died delivering McDonalds. Had he been making the burgers, not delivering them, he would have had access to worker’s compensation. As it was, like all the victims, he was entitled to nothing.

Whilst safety at work and compensation for those injured is something most of us take for granted, protections afforded to those working in the ‘gig economy’ aren’t as comprehensive.

Workers Compensation is a vital mechanism which allows workers time to treat and rehabilitate injuries sustained at work and ensures their families aren’t left scrambling to pay the bills. Under current conditions, most workers in the ‘gig economy’, including food delivery riders with companies such as Uber, Deliveroo and DoorDash, are not afforded these protections. This is due to their status as independent contractors, essentially meaning that they are considered to be operating their own business rather than working as an employee for a company.

Some companies do offer group insurance for their riders; however, the pay-outs are significantly less than what is available for employees under NSW Workers Compensation laws.

There is appetite for change on this front. A NSW Senate Inquiry into the gig economy has fielded submissions from the National Insurance Brokers Association (NIBA) and the Transport Workers Union (TWU), with both organisations calling for amendments to how gig workers access personal injury insurance.

The NIBA states that legislation could easily be amended to cover such workers by recognising them as ‘deemed workers’ under the Workers Compensation scheme. Under The Workplace Injury Management and Workers Compensation Act 1998, certain contractors are granted this classification, allowing them access to the same insurance scheme as employees. It is the opinion of the NIBA that this would be the easiest way to provide certainty to both gig workers and platform providers.

Many people who may otherwise be considered outside the traditional employment relationship are deemed workers under NSW Workers Compensation Law. Jockeys, Harness Racing Drivers and Golf Caddies, all of whom are hired casually on a one-off basis by multiple principals, are deemed workers under NSW legislation. In addition, the legal determination of whether a worker is an employee or a contractor can be a complex legal task. That a worker is called a contractor is no more valid than labelling an orange as an apple. Whatever the label-an orange is still an orange.

In two high profile cases, the Fair Work Commission have already found that despite the claimants being labelled as contractors, the conditions of their work meant that they were employees in the eyes of the law.

In Klooger v Foodora Australia Pty Ltd [2018] FWC 6836 and Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818, food delivery riders were found to have been unfairly dismissed on the grounds that they were employees and not contractors and were thus entitled to greater protections. Whilst other cases, such as Gupta v Portier Pacific Pty Ltd [2020] FWCFB 1698, have found to the contrary, there is more than enough basis for gig workers to contest their mandatory coercion into the world of independent contracting, should their work conditions suggest otherwise.

Workers injured or killed in these jobs, and their dependants, are often from parts of community who do not find it easy to get legal advice-even though such advice is available for free in most Australian jurisdictions. Asking a boss or an insurance company for advice on your rights is often akin to asking the crocodile if it is safe to swim in the lagoon.

Sustaining an injury at work is a serious, often life-changing event. Any worker who sustains an injury at work, regardless of their status, should seek legal advice to ensure their rights are being upheld to the fullest extent of the law. There is no downside to calling us and having a confidential, free conference to ascertain whether a claim for compensation or damages can be made. You have nothing to lose.

Sexual Harassment at Work: The Game Has Changed

Workplace Harassment

Sexual Harassment at work – The Game has changed

Everyone has the right to feel safe at work. In Australia, there are laws which govern acceptable workplace behaviour and the ways which employers and employees  are expected to act towards each other.

With regards to sexual harassment, the parameters of acceptable behaviour are clearly defined by the Sex Discrimination Act 1984. According to the Act, sexual harassment occurs when:

  1. the per­son makes an unwel­come sex­u­al advance, or an unwel­come request for sex­u­al favours, to the per­son harassed; or
  2. engages in oth­er unwel­come con­duct of a sex­u­al nature in rela­tion to the per­son harassed;

in cir­cum­stances in which a rea­son­able per­son, hav­ing regard to all the cir­cum­stances, would have antic­i­pat­ed the pos­si­bil­i­ty that the per­son harassed would be offend­ed, humil­i­at­ed or intimidated.

Whilst this law has been in place for nearly 40 years, remedies, particularly the quantum of damages, have lagged behind community expectation. A recent case has shown the willingness of the Federal Court to pay higher than usual damages in certain circumstances.

In Hugh­es v Hill [2020] FCAFC 126, general damages of $120 000 and aggravated damages of $50 000 were ordered to be paid to Ms Catherine Hill by her former employer Mr Owen Hughes after he sexually harassed her both inside and outside of the workplace for nearly 12 months.

Mr Hughes, a solicitor, employed Ms Hill as a paralegal in May of 2015, promising to train her as a solicitor. During the tenure of her employment, Mr Hughes also acted for Ms Hill in a family law matter against her former husband, obtaining confidential personal information in the process. He later attempted to use this information against her during the sexual harassment proceedings, a tactic the judge labelled ‘outrageous’.

Two months after her employment began, so did the harassment.

Mr Hughes’ harassment took many forms; incessant emails in which he professed his desire for a relationship with Ms Hill, unwanted advances in which he lay on Ms Hill’s bed uninvited on a business trip (dressed only in his underwear) and even physical incidents in which he prevented her from leaving her own office until she gave him a hug.

Ms Hill made it repeatedly clear to Mr Hughes that she was not interested in any romantic or intimate relationship with him, going so far as to confront him directly with accusations of harassment, at risk to her ongoing employment. Despite this, Mr Hughes was unrelenting, even implying that her employment and continued training would be made easier if Ms Hill were more receptive of his advances.

Ms Hill suffered greatly due to Mr Hughes’ harassment, which significantly exacerbated her pre-existing anxiety disorder and resulted in her resigning from her employment. The Federal Court of Australia found that despite Mr Hughes’ protestations that his intentions were ‘honourable’ not ‘sexual’ and that $170 000 damages were ‘manifestly excessive’, his actions did in fact constitute sexual harassment and that the damages were entirely within the range of available awards.

This case has garnered significant public attention due to Mr Hughes’ ‘despicable’ conduct (including the use of information obtained as Ms Hill’s solicitor against her in court) and his self-comparison to Mr Darcy from Pride and Prejudice. Legally it is signification because it has displayed a willingness on the part of the Federal Court to award substantial damages in cases of sexual harassment where power imbalances, here the imbalance between employer and employee, increase the level of suffering and distress felt by the victim of the harassment.

The payment of $50 000 ‘aggravated damages’, too, is significant as it displays the court’s ability to add aggravated and exemplary damages in cases where the victim’s suffering is uniquely amplified by the actions of the harasser, here the unethical divulsion of Ms Hill’s personal information and the manner in which he conducted his defence.

This case has changed the landscape of sexual harassment cases. With any legal proceedings, there is a cost-benefit analysis which must be considered by the client and the solicitor, weighing up whether the costs of proceeding with the action outweigh the potential compensation for the client. Sexual harassment cases have in the past not been viable when the risks and rewards are weighed up.

This is no longer necessarily true. If you have experienced sexual harassment, inside or outside the workplace, come in for an obligation free chat. There is nothing to lose.

Good News for Workers: Hockbaum & Whitton Decided Favourably

Seriously injured workers throughout NSW have been anxiously awaiting the Court of Appeal Decisions in these 2 matters.  The President of the Workers Compensation Commission reversed the Arbitrator’s decision in both matters effectively disentitling workers to weekly benefits of compensation after 260 weeks of benefits even though they were later found to exceed the 20% Whole Person Impairment threshold which should have meant their benefits continued beyond 260 weeks. This meant many seriously injured workers missed out on long periods of weekly benefits of compensation and were often left on Social Security.

 

Today the NSW Court of Appeal overturned the President’s ruling meaning that such workers were entitled to continue on weekly benefits beyond 260 weeks even if they were assessed years after their benefits were cut off.  Effectively this means that many such workers will be entitled to back pay, some for many years.

The full decision can be accessed here.

A Lawyer to talk to and trust: What I’ve seen from a country law firm

It is a never-ending source of amazement to me as to why country people and those in regional towns and cities engage big city, big advertising law firms to represent them when they have an accident or some other legal problem.

Is it the perception that a firm that advertises on television or has a multi-million dollar sponsorship of some sporting spectacular will somehow do a better job with their claim. Sometimes it is just that the advertisement appears at the same time as the need and client, unaware of the intricacies of the legal practice is captured by the glossy advertisement thinking that all lawyers must be equally able to fulfill their needs.

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Rights & Entitlements for Terminated Employees

If you’ve been terminated from your employment, its important to know your rights and entitlements.

Termination

If you’re losing your job, it’s a requirement that you be given notice of your termination. There is no particular form in which notice of termination must be given however its recommended that it be provided directly to you and in writing.  In addition to this you must be given ‘reasonable notice’ as to when your employment will end. This length of time may be stipulated in your contract or prescribed by legislation or an award.

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Victorian Motor Accident Victims – New TAC protocols for Common Law claims

As of 1 January 2020 the Transport Accident Commission (“TAC”) have introduced new protocols in relation to Common Law claims (also known as Serious Injury claims) which are designed to supplement their prior protocols. These supplementary protocols are designed to help those injured in Victorian Motor Vehicle Accidents obtain compensation in a more timely manner.

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I’ve been in a Motor Vehicle Accident… Do I need a Lawyer?

The simple answer is YES!

But first lets backtrack a little and catch up with some of the recent changes in the law regarding personal injuries as a result of motor vehicle accident in NSW.

From 1 December 2017 a new scheme commenced as a result of reform to the Motor Accident Compensation Act (1999). The principle change was that some benefits were available to all people injured in a motor vehicle accident regardless of fault (for a limited period).

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