THIS MONTHS NEWS – MAY 2014

FacebookGENERAL NEWS

FACEBOOK AND THE WORKPLACE

Internet usage is a daily problem for employers.  Much like personal phone calls it is in some cases unreasonable and in most cases not possible to prevent employees from browsing.  However what you don’t want them doing is harming your business.

Judith Wilkinson worked at Launceston Toyota and used her Facebook page to express her views about the owner of the business.

Judith was the Human Resources Manager for the business and had first commenced employment in 1995.   She was terminated in August 2013.

She was given a letter on 5 August 2013 signed by the Dealer Principal which set out areas of concern.   There was a meeting two days later and following the meeting the Dealer Principal told her that he had come to the view that her employment should be terminated.

The Dealer Principal had taken over the dealership about 3 years earlier.  Ms Wilkinson had held the position of Human Resources Manager for over 10 years at that time.

After the Dealer Principal took over the business Ms Wilkinson and he were unable to establish a good working relationship.

In the months prior to her termination Ms Wilkinson had been contacted on a number of occasions by the Dealer Principal’s wife who had discovered that he had been having an affair.   It appears that the Dealer Principal was not happy that Ms Wilkinson was in contact with his wife.  At about the same time Ms Wilkinson’s husband had to be admitted to the emergency department after falling ill.   The Dealer Principal did not show any concern for Ms Wilkinson’s husband which also upset her.

Ms Wilkinson then sent the Dealer Principal’s wife a personal message and they engaged in a conversation on Facebook in which not much good was said of the Dealer Principal.

The Dealer Principal found the communication on his wife’s Facebook page without his wife’s consent.

He accused Ms Wilkinson of divulging confidential business information to his wife.

The Facebook chat between Ms Wilkinson and the Dealer Principal’s wife however was meant to be private.

The Fair Work Commission came to the view that in all the circumstances of this case the termination of employment was harsh, unjust and unreasonable.  However, reinstatement was not ordered as that would be inappropriate having regard to the relationship between the parties and the size of the management team.

Ms Wilkinson was only 3 years away from retirement and the Commission came to the view that if she had not been dismissed then she would otherwise have expected to remain employed until her planned retirement.   She was awarded as compensation in lieu of reinstatement an amount equal to the amount earned by her for 26 weeks prior to her dismissal.

An expensive exercise from Launceston Toyota!  Employers should have policies in relation to internet use.  In a small office it might be unnecessary, but once the number of employees exceeds 10 to 20 policies have to be in place.  To some extent those policies also need to cover activities outside the workplace.   On this occasion Ms Wilkinson’s Facebook conversation with the Dealer Principal’s wife took place at night.  It had not been the intention of either Ms Wilkinson or the Dealer Principal’s wife to make the conversation public.

Generally it can be argued that it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activity of employees.  That does not mean however that an employer cannot have a policy or insert in a contract of employment conditions relating to making derogatory or harmful comments which go the reputation and ethical behaviour of a business or persons in the business.

Employers should review their employment contract and employment policies in relation to internet use and the making of harmful statements about a business.

SUPERANNUATION DEATH BENEFITS: ARE THEY YOURS?Superannuation Nomination

Whether your superannuation is invested in a self managed fund or a retail fund you will have at some stage nominated who your beneficiaries are to be.  It is often forgotten that that nomination is simply a direction to the trustee of the fund as a result of which the trustee must pay your benefit to one or more of your dependents and/or legal personal representative in proportions which are determined by the trustee not by you.   In most cases this does not pose a problem.

However, it can!

A Western Australian case decided last year is an example of how problems can arise within a family and lead to disputes relating to a superannuation fund. Francesca Conti and Augusto Conti had their own superannuation fund.  Francesca and Augusto were the only Trustees and members.  Francesca died leaving a Will.

There was just under $650,000.00 in Francesca’s account when she died.   In the absence of a binding written direction from Francesca the trustees of the fund were entitled in their absolute discretion to pay or apply the amount of the fund to a spouse or child of the member or any other person who in the opinion of the trustees was dependent on the member at the relevant date being the date of death.

Following Francesca’s death Augusto was the sole trustee of the fund. Subsequently he appointed a company Augusto Investments Pty Limited to be the trustee.

Francesca’s Will expressed a wish that her superannuation be given to her four children.  She specifically stated she did not want any entitlement to be paid to her husband.

A trustee of a fund is not bound to take into account the desires of a deceased member expressed in a Will.   Augusto decided that Francesca’s money should be paid not to the children but to himself.

The children sought to dispute that payment.

It may not sound right but Augusto won the case and pocketed the $650,000.00.  These circumstances you would think would be rare but could often occur in circumstances involving blended families or with children who have a poor relationship with a surviving parent.

How to avoid the problem?

You can avoid the problem by signing a binding death benefit nomination.  A binding death benefit nomination only lasts for 3 years.   You need to remember to renew it.  If you are in a retail fund then your fund ought to write to you to remind you that the nomination is expiring.   That assumes of course that you have given the binding death benefit nomination to the trustee which of course you should do.

If you have a self managed fund then you need to check your Trust Deed to see what it says about binding death benefit nominations.  The chances are that your Deed will provide for similar procedures as in a retail fund.

A binding death benefit nomination even though executed is not necessarily valid.  To be valid it must provide for:

  • The nomination of a person who is a dependent as at the date of death
  • A nomination in favour of a dependent and/or legal person or representative
  • The allocation of 100% of your benefit amongst the beneficiaries nominated and the apportionment to each being clearly set out
  •  The signing and dating of a nomination in the presence of two witnesses over the age of 18 years and who are not persons who will receive the benefit
  •  A declaration signed and dated by each witness stating that the notice was signed and dated by you in their presence

As with most things in life today all this involves more and more paperwork.  But this is paperwork that must be attended to.

 

PORTUGAL

ABOUT PORTUGALlogotype-wedo_technologies

There are a number of Portuguese businesses with great strengths in technology and software.  WeDo Technologies is a Portuguese company which is a worldwide leader in Revenue and Business Assurance software. They recently announced their latest release to its fraud management software suite RAID:FMS7.  With their new release service providers will be able to take an enterprise level view of fraud managing risk threats such as international revenue share fraud (IRSF), bypass or wholesale fraud and private automated branch exchange (PABX) hacking more effectively during the release of new products and services.

Enquiries in relation to WeDo products in Australia can be made to WeDo Technologies at miguel.lopes@wedotechnologies.com

 

PORTUGUESE REAL ESTATE

LapaLapa is an upmarket area of Lisbon facing south and close to the water.  This building has been refurbished from the joining of three existing buildings into a total of 7 units varying between 2 and 4 bedrooms and with areas of 152 to 382 square metres.

Lisbon’s average square metre price for apartments is about 2000 Euro but this property is very much at the top end of the range with apartments in the market with an asking price of 5000 Euro a square metre.  To know more go to www.lapa111.com .

If you are interested in buying property in Portugal please give us a call.