Terminating an employee’s contract is one of the most challenging and legally sensitive actions a business owner or manager will ever have to take. While it’s a necessary part of managing a workforce, the decision to dismiss an employee cannot be taken lightly. In New South Wales, the process is governed by a strict legal framework designed to protect employees from unfair treatment. It’s not enough to simply have a reason for dismissal; you must also follow a fair and lawful process . Getting it wrong—even during a probationary period—can expose your business to costly legal claims, including unfair dismissal, general protections, or breach of contract. This guide will outline when you can lawfully terminate an employee in NSW and the critical steps you must follow to protect your business. A Special Case: Termination During a Probationary Period Many employers believe a probationary period gives them a "get out of jail free" card, allowing them to dismiss an employee for any reason without legal risk. This is a dangerous misconception. The maximum probation period under the Fair Work Act 2009 is: 12 months for a small business (fewer than 15 employees). 6 months for all other businesses. This period is known as the minimum employment period under the Act. An employee cannot file an unfair dismissal claim until they have completed this minimum employment period. While this provides a level of protection, it does not make an employer immune to other serious legal claims. The Hidden Risks of Probationary Terminations: Even if an employee can't claim unfair dismissal, they can still take legal action if you terminate them for a prohibited reason. The biggest risk is a general protections claim , where an employee alleges they were dismissed for: Exercising a workplace right (e.g., making a complaint about safety, asking about their pay or entitlements). A discriminatory reason (e.g., due to their race, sex, age, pregnancy, or disability). Being temporarily absent due to illness or injury. Furthermore, you must still abide by the employment contract, which includes providing the required notice period . Failing to do so can lead to a breach of contract claim. Best Practice: Think of probation not as a risk-free trial, but as a period for actively managing performance. If you do decide to terminate, ensure you have a valid, documented, performance-related reason and are not acting for a prohibited reason. 1. Termination with Notice (For Performance or Misconduct) This is the most common method of termination. It is used in situations involving consistent poor performance, or misconduct that is not severe enough to warrant instant dismissal. a) The Valid Reason The reason must be sound, defensible, and well-documented. Examples include: Poor Performance: The employee has consistently failed to meet the inherent requirements of their role, despite being given clear warnings and an opportunity to improve. Misconduct: The employee has breached their employment contract or a workplace policy (e.g., inappropriate use of company resources, breaches of safety rules). b) The Fair Process (Procedural Fairness) To terminate for poor performance or misconduct, you must demonstrate you have acted fairly. This involves: Issuing Warnings: For poor performance, you should have records of meetings, performance improvement plans (PIPs), and clear written warnings outlining the consequences of failing to improve. Conducting an Investigation: For misconduct, investigate the allegations thoroughly and impartially. Notifying the Employee: Inform the employee of the specific reasons for the potential termination in clear, unambiguous language. Providing a Chance to Respond: This is a critical step. You must give the employee a genuine opportunity to respond to the reasons and have their response considered before you make a final decision. Allowing a Support Person: You must permit the employee to have a support person present at any formal meetings discussing their potential dismissal. You must then provide the employee with the minimum period of written notice as required by the National Employment Standards (NES) or their contract, whichever is greater. You can also choose to pay them in lieu of this notice period. 2. Summary Dismissal (Instant Dismissal) Summary dismissal is termination without notice. This is reserved only for cases of serious misconduct , which is conduct so severe that it destroys the employment relationship. The Fair Work Regulations 2009 define serious misconduct to include actions like: Theft, fraud, or assault Being intoxicated at work Refusing to carry out a lawful and reasonable instruction that is central to the work A Word of Warning: Summary dismissal is a high-risk strategy. The burden of proof is on you, the employer, to show the misconduct occurred and was serious enough to justify instant dismissal. Even in these cases, it is highly advisable to conduct a swift investigation and give the employee a chance to explain themselves before acting. 3. Genuine Redundancy A redundancy occurs when you terminate an employee because their job is no longer required to be done by anyone. This is about the role , not the person or their performance. For a redundancy to be "genuine" under the Fair Work Act , three conditions must be met: The employer no longer requires the person’s job to be performed by anyone due to changes in operational requirements. The employer has complied with any consultation obligations in a relevant Modern Award or Enterprise Agreement. This usually involves discussing the proposed changes with affected employees. It was not reasonable in the circumstances to redeploy the employee to another role within your business or an associated entity. If these conditions are met, the employee will not be able to make an unfair dismissal claim. You must still provide notice and, in most cases, pay redundancy severance based on their years of service. The High Cost of Getting It Wrong Failing to follow a fair and lawful process can lead to significant legal claims: Unfair Dismissal: A claim that the dismissal was "harsh, unjust, or unreasonable." A flawed process is the most common reason for a successful claim. General Protections Claim: An allegation that you dismissed an employee for a prohibited reason, such as exercising a workplace right or on discriminatory grounds. These claims carry the risk of uncapped damages. Breach of Contract: If you fail to follow a process mandated by the employment contract. Final Thoughts Termination is a legal minefield where process is paramount. Always ensure you have a clear, documented reason and have followed the steps of procedural fairness. Taking the time to manage the process correctly is a small investment compared to the time and cost of defending a legal claim.

Grandparents play a vital role in the lives of their grandchildren, offering love, support, and a sense of belonging. However, in the context of family breakdown, grandparents' rights to maintain relationships with their grandchildren can become complex and contentious. As family lawyers, we often advise grandparents on their legal rights and options for staying connected with their grandchildren, particularly when faced with resistance from parents or other family members. In Australian family law, the best interests of the child are paramount. While there's no automatic right for grandparents to have contact with their grandchildren, the law recognises the importance of maintaining these relationships where it's in the child's best interests. Grandparents can apply to the Family Court for orders regarding spending time with or communicating with their grandchildren. The Court considers various factors when determining what's in the child's best interests, including the nature of the grandparent-child relationship, the child's views (depending on their age and maturity), and any risk of harm to the child. Grandparents may need to provide evidence of a close and meaningful relationship with the child and demonstrate their ability to provide a safe and supportive environment. As family lawyers, we assist grandparents in navigating the legal process, from preparing applications to representing them in Court. This involves gathering evidence, negotiating with parents and other parties, and presenting arguments to the Court. We also advise on alternative dispute resolution options, such as mediation, which can be a less adversarial and more cost-effective way to resolve disputes.  While the legal process can be challenging, we’re committed to helping grandparents assert their rights and maintain their precious bonds with their grandchildren. By providing clear legal advice and compassionate support, we strive to achieve outcomes that benefit the child and preserve the invaluable role of grandparents in their lives.

It’s a classic neighbourhood dispute: a neighbour knocks on your door, complaining that your beautiful trees are blocking their prized view and demanding you cut them down. If you refuse, they might threaten legal action. So, what are your rights, and can they actually force you? In New South Wales, these conflicts are governed by the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the "Trees Act"). While a neighbour can't simply force you to remove a tree, they can apply to the NSW Land and Environment Court for an order. However, they have a high bar to clear, and as a recent case handled by our firm shows, a strong defence can protect your property and your privacy. Last week, Andrew Pacini of Hammond Nguyen Turnbull successfully defended a client whose neighbour was demanding the removal of a row of screening trees. We won the case by demonstrating two key points: first, that the Tribunal had no power to make the order because the trees weren't actually on our client's land, and second, that the neighbour's view was not severely obstructed anyway. The Process: What a Neighbour Must Prove When a neighbour makes a claim about trees blocking a view, it's typically because they believe the trees form a "high hedge" that is causing a "severe obstruction." For their application to the Tribunal to succeed, they must prove several key things: The Trees Are on Your Land: The Trees Act only applies to trees that are situated " wholly or principally " on the land of the person the claim is brought against. This is a crucial first step. They Constitute a Hedge: The trees must consist of two or more trees that are planted closely together to form a continuous screen. There is a "Severe" Obstruction: This is a very high standard. It's not enough for the trees to partially interrupt a view. The applicant must convince the Tribunal that the obstruction is severe . A View from a Dwelling is Obstructed: The alleged view obstruction must be from a dwelling on the applicant's land, not just from the backyard or garden. How to Defend a Claim: A Case Study In our recent case, the neighbour's claim failed before it even got off the ground. A careful look at the property survey revealed a critical fact: the trees in question were growing on a narrow strip of land—a drainage reserve—owned by the local Council. 1. Challenge the Tribunal's Jurisdiction Because the trees were not "wholly or principally" on our client's land, we successfully argued that the Tribunal had no jurisdiction (i.e., no legal power) to make an order against our client. The neighbour's claim was directed at the wrong party; if they wanted to pursue the matter, they would have to take it up with the Council, who had already inspected the trees and decided to take no action. Key Takeaway: Always check your property boundaries. The location of the tree is the most important first question. 2. Argue the Merits of the Case Even if the trees had been on our client's land, the neighbour's claim was weak. We successfully argued: The Obstruction Wasn't "Severe": The neighbour’s own photos showed they still had extensive river views from their home. The trees only partially intersected the line of sight and did not come close to causing a "severe obstruction". In fact, our client had previously removed several large, mature trees, significantly improving the view compared to what it was when the neighbours first purchased their property. Privacy Outweighs the View: The Tribunal must balance the neighbour's interest in a view against the tree owner's interest in keeping the trees. Our client's trees formed an essential privacy screen, shielding their home, pool, and entertaining areas from being directly overlooked by several elevated neighbouring properties. We argued that removing them would have a devastating impact on our client's privacy and amenity, which far outweighed the minor impact on the neighbour's view. What to Do if You Receive a Claim If a neighbour has threatened or commenced legal action over your trees, don't panic. Here are some simple first steps: Confirm Your Boundaries: Get a copy of your property survey to confirm exactly where the trees are located. We can assist you with this. Gather Evidence: Take photos and videos from the neighbour's likely point of view to assess the extent of any view obstruction. Document the history of the trees and any maintenance you've performed. Don't Engage in Hostility: While these disputes can be emotional, it's important to remain calm. In our case, the neighbour's harassing behaviour towards our client did them no favours. Seek Legal Advice: A lawyer experienced in property law can assess the strength of the claim against you and formulate a clear defence strategy. Tree disputes can be stressful, but you are not powerless. Understanding the law and your rights is the first step to protecting your property.  If you're facing a tree dispute with a neighbour, contact the expert team at Hammond Nguyen Turnbull for advice and representation.

Starting a company with business partners is often built on a foundation of shared vision and trust. In the early days, everyone is pulling in the same direction. But as a business matures, priorities can diverge, personalities can clash, and what once seemed like a perfect partnership can start to feel like a battle for control. Disputes between shareholders are one of the most common and damaging issues a private company can face. They can paralyse decision-making, destroy value, and turn trusted colleagues into bitter adversaries. Understanding the common battlegrounds and the legal pathways to resolution is essential for protecting your investment and your rights. Common Battlegrounds: Where Disputes Ignite Shareholder conflicts typically arise in a few key areas. Disputes Over Control and Company Direction This is the classic "vision" conflict. One shareholder might want to pursue aggressive, high-risk growth and expansion, while another prefers a conservative approach, focusing on steady profitability. This can lead to deadlock on major decisions, especially in a 50/50 ownership structure where neither party has a deciding vote. The Dividend Dilemma: Reinvest vs. Distribute Cash is the lifeblood of a business, and disagreements over what to do with profits are frequent. For example: An active shareholder working in the business may prefer to reinvest all profits back into the company to fuel growth. A passive shareholder (or one nearing retirement) may rely on that income and want the company to distribute profits as dividends. This conflict places the financial goals of the shareholders in direct opposition. Oppression of Minority Shareholders This is one of the most serious and legally complex areas of conflict. It occurs when majority shareholders use their voting power to run the company in a way that is unfairly prejudicial to the minority shareholders. Common examples of oppressive conduct include: Excluding minority shareholders from management roles they previously held. Paying excessive salaries and bonuses to themselves (the majority) to reduce the profits available for dividends for everyone. Diverting business opportunities or clients to other companies they control. Refusing to provide access to financial information. Blocking the minority shareholder from selling their shares at a fair market value. Pathways to Resolution: From Negotiation to Court Action If you find yourself in a shareholder dispute, a structured approach is critical. Step 1: Check the Shareholders Agreement A well-drafted Shareholders Agreement is your first and most important line of defence. This document is the "rulebook" for the company and its owners. It should contain clauses outlining: How key decisions are made. A process for valuing shares. A formal dispute resolution procedure (e.g., requiring mediation before litigation). How shares are to be sold / transferred. Before you do anything else, review this agreement with a lawyer. Step 2: Negotiation and Mediation The most commercial and cost-effective solution is always a negotiated settlement. Formal or informal discussions, aimed at finding a business-like solution, should be your first step. If direct negotiation fails, mediation is an excellent option. A neutral third-party mediator can help facilitate communication and guide the parties toward a mutually acceptable outcome, such as a structured buyout or a revised management plan. Step 3: Your Legal Rights Under the Corporations Act 2001 When negotiation and mediation fail, the Corporations Act 2001 provides powerful remedies. The two most common actions are: The Oppression Remedy (Section 232): This is the primary tool for minority shareholders. If a court finds that the company's affairs are being conducted in a manner that is oppressive or unfairly prejudicial, it has broad powers to make orders. The most common order is for the majority to buy the minority shareholder's shares at a fair value , determined by an independent expert. Winding Up the Company (Section 461): This is the "nuclear option." A court can order the company to be wound up (liquidated) if it is "just and equitable" to do so. This is typically reserved for cases of complete deadlock or a total breakdown of mutual trust and confidence, where the company can no longer function as intended. Protect Your Investment A dispute with your business partners can feel personal and overwhelming. The key is to act strategically, not emotionally. By understanding your rights and the legal pathways available, you can move to protect your investment and fight for a fair outcome.  If you are involved in a shareholder dispute, don't wait for the situation to deteriorate. Contact us for expert legal advice on your rights and strategic options.

As family lawyers, we witness firsthand the profound emotional and psychological toll that family law matters can inflict on individuals. The stress, anxiety, and uncertainty associated with separation, divorce, child custody disputes, and other family law issues can significantly impact mental health and well-being. It is crucial to recognise that seeking support for your mental health during these difficult times is not a sign of weakness, but rather a proactive step towards self-care and resilience. As family lawyers, we encourage our clients to prioritise their mental health and seek appropriate support, recognising that emotional well-being is essential for navigating the legal process and making informed decisions. The family law system itself can be overwhelming and intimidating, with its complex legal procedures, adversarial nature, and potential for conflict. This can exacerbate existing mental health conditions or trigger new ones, such as depression, anxiety, and post-traumatic stress disorder. There are various avenues for seeking support, including individual therapy, counseling, support groups, and online resources. Mental health professionals can provide a safe and confidential space to explore emotions, develop coping mechanisms, and manage stress. They can also assist with navigating the legal process, providing emotional support and guidance during court appearances or mediation sessions. In addition to professional help, it's important to build a strong support network of trusted friends, family members, or community groups. These individuals can offer emotional support, practical assistance, and a sense of belonging during a challenging time. Self-care practices, such as exercise, healthy eating, mindfulness, and adequate sleep, are also crucial for maintaining mental health and well-being during family law matters. Engaging in activities that bring joy and relaxation can help manage stress and promote emotional balance. Remember, you are not alone. Many people experience mental health challenges during family law proceedings. By seeking support and prioritizing your well-being, you can navigate this difficult time with greater resilience and emerge stronger on the other side.

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For any business owner, facing significant financial difficulty is one of the most stressful challenges imaginable. The pressure from creditors, the concern for your employees, and the uncertainty of the future can be overwhelming. However, it's crucial to remember that Australian law provides structured pathways to manage these situations. Making a proactive, informed decision is not an admission of failure, it is an act of responsible leadership. This guide will outline three key options available to companies in distress: Voluntary Administration, Receivership, and Liquidation. 1. Voluntary Administration: A Chance to Restructure and Survive Think of Voluntary Administration (VA) as a breathing room. It’s a process designed to give a financially troubled company the best possible chance of continuing to exist, or if that’s not possible, to provide a better return for creditors than an immediate liquidation would. What is it? The directors of a company determine it is insolvent or likely to become insolvent, and they appoint an independent, registered liquidator as an Administrator. This places a moratorium (or freeze) on most creditor claims, giving the company vital space to figure out its next move. What is the goal? The Administrator takes full control of the company to investigate its financial affairs. They then form an opinion on the three possible outcomes for the business: Return the company to the control of the directors. Approve a Deed of Company Arrangement (DOCA) – a binding agreement between the company and its creditors to settle its debts and continue trading. Wind the company up via Liquidation. Best for: Businesses that are fundamentally viable but are struggling with cash flow or debt. It provides a genuine opportunity to restructure, renegotiate with creditors, and emerge stronger. 2. Receivership: The Secured Creditor Takes Control Receivership is not typically a choice made by the business itself. Instead, it is initiated by a major secured creditor (like a bank) that holds security over some or all of the company's assets. What is it? A secured creditor appoints a "Receiver" to take control of the specific assets they have security over. The Receiver's primary duty is to the creditor that appointed them. What is the goal? The Receiver's main objective is to sell the secured assets to recover the money owed to their appointing creditor. Their focus is not on saving the company as a whole, but on satisfying the debt of one specific, powerful creditor. Key takeaway: If your business has significant loans secured by assets like property or equipment, receivership is a real possibility if you default. The directors' control over those assets is lost. 3. Liquidation: The End of the Company's Life Liquidation, also known as "winding up," is the formal process of bringing a company's existence to a close. It is the final stage when restructuring or recovery is not possible. What is it? A Liquidator is appointed to take control of the company's affairs. Their job is to identify and sell all company assets, use the proceeds to pay creditors in a specific order of priority defined by law, and officially deregister the company. What is the goal? The primary goal is to ensure an orderly and fair distribution of the company's remaining assets to its creditors. Any surplus funds, in the rare event they exist, are distributed to the shareholders. For the company itself, this is the end of the road. Key takeaway: This is the terminal option. It is initiated either by a court order, by creditors, or voluntarily by the company's directors and shareholders when they know the business cannot pay its debts. Why Early, Expert Advice is Your Most Valuable Asset Navigating the complexities of the Corporations Act 2001 is not something any director should do alone. The risks of trading while insolvent are severe and can expose you to personal liability. Engaging with legal and financial experts at the first sign of trouble is the most strategic step you can take. An experienced insolvency lawyer can act as your partner, helping you understand your duties, protect your personal position, and identify the best pathway for your unique situation. We can help you negotiate with creditors, correspond with administrators, and ensure every decision is made to secure the best possible outcome. Don't wait until the choice is made for you. Take control of the situation. If your business is facing financial uncertainty, contact our Commercial Advisory team for a confidential, no-obligation discussion about your options.

As family lawyer’s, we understand that legal fees can be a significant concern for individuals navigating the family law system. This often leads to the question of whether self-representation is a viable option. While it's certainly possible to represent yourself in family law matters, it's crucial to weigh the potential risks and benefits carefully before making this decision. Self-representation can save you on legal fees, but it also comes with significant challenges. Family law is a complex area with its own rules, procedures, and legal principles. Navigating this system without legal training can be overwhelming and increase the risk of errors or missed opportunities. Self-represented litigants may expose themselves to disadvantages when dealing with experienced lawyers representing the other party. They may not have the same level of legal knowledge, advocacy skills, or ability to gather and present evidence effectively. This can lead to unfair outcomes and a sense of powerlessness in the legal process. Additionally, self-representation can be emotionally draining, especially in cases involving high conflict or sensitive issues. The stress of managing the legal process alone, while also dealing with the emotional turmoil of a relationship breakdown, can take a toll on your mental health and well-being. While self-representation may be suitable for simple, uncontested matters, we generally advise clients to seek legal advice, even if it's just for an initial consultation. A lawyer can provide you with an objective assessment of your situation, explain your rights and obligations, and guide you through the legal process. They can also advocate for your interests, negotiate on your behalf, and represent you in court if necessary.  Remember, the family law system is designed to be accessible to everyone, regardless of their legal knowledge or financial resources. By seeking legal advice and support, you can ensure your rights are protected and achieve a fair and just outcome in your family law matter.

Purchasing property interstate, whether for your first home or your next investment, is a positive step towards securing your future. However, fully grasping each state’s unique schemes and recently implemented regulations can be challenging. At Hammond Nguyen Turnbull, we assist clients in navigating the complexities of property purchases across Australia. If you are considering a purchase in Victoria, this article will help you understand Victoria’s new Land Tax Rules and what you need to be aware of. Lower Threshold Means More Landowners Are Now Taxed A land tax threshold is the minimum unimproved value of land where tax becomes payable. If the unimproved value of your land is below this threshold, you generally aren't required to pay land tax. However, if it meets or exceeds the threshold, land tax will be calculated on the taxable value of the land, often with different rates applying to different value brackets. Each state in Australia has a different land tax threshold. From 1 January 2024, Victoria slashed its land tax threshold from $300,000 to just $50,000 , catching tens of thousands of previously exempt landowners off guard. Since then, properties valued above $50,000 are subject to annual land tax, even if they are a primary residence that is partly used for business purposes. Primary Place of Residence (PPR) Exemption The Primary Place of Residence (PPR) Exemption still exists. This means that your home is generally exempt from land tax if it's truly your main residence.This means it's the place where you ordinarily live and conduct your daily life. However, this exemption can be partially lost if your home is used for business and meets certain conditions, even if you’re earning just over $30,000. When Home-Based Income Triggers Land Tax Victoria’s State Revenue Office (SRO) now flags home-based businesses more aggressively, using criteria like: Gross income of $30,000 or more from the home-based activity. Over 30% of your home’s floor space or land area used for that activity. Employees or contractors (not just family) working on the premises. Business activities requiring council permits. Extensive tax deductions claimed in your income tax return. If these conditions are met, the land used for business becomes subject to a pro-rated land tax based on its share of your property’s unimproved site value. For instance, a $900,000 home with 10% used for business means $90,000 is taxable. Under current rates, this could attract around $500 in annual land tax . Work-From-Home Debate and Uncertainty With the Victorian government’s push to formalise a right to work from home up to two days per week, concerns have surged about unintended land tax liabilities. Premier Jacinta Allan firmly denied any changes to tax settings, calling claims of new land tax for WFH workers “nonsense”. Still, tax experts caution that the current law already allows the SRO to strip exemptions if your home usage is deemed substantial even for salaried employees. Land Tax Rates at a Glance (2024 Onwards) According to the SRO’s rate schedule: Up to $50,000 — Nil $50,000 to < $100,000 — $500 $100,000 to < $300,000 — $975 Higher brackets apply for land exceeding these values. What You Should Do Next  Assess your usage: do you earn over $30,000 at home? Is usage >30%? Are you claiming significant deductions? Track your property’s unimproved value and calculate the business-use portion. Stay informed about the expanding Vacant Residential Land Tax (VRLT) from 1 January 2025. It applies to properties left unoccupied over 6 months, state‑wide. Seek professional advice from a tax accountant or legal advisor to ensure compliance and minimise surprises.