Employer Representation

Sonia enjoys tackling complex dispute resolution challenges to achieve the best outcomes for her clients, using an interest-based approach.Sonia has acted for a range of employer clients spanning various industries. During her time as a legal counsel at labour hire and recruitment company, Hays Specialist Recruitment, she has been involved in representing and assisting the company in various disputes including bargaining for an enterprise agreement for black coal mining companies.Some of Sonia’s work on employer-related matters include:Assisting and representing employers with industrial issues – she recently represented an employer in relation to a transfer of an industrial instrument;Supporting and representing employers in various workplace claims – she has represented many employers to defend against unfair dismissal claims, general protections, harassment, bullying and discrimination claims;Supporting various employers with amicable separations with employees, including managing difficult conversations and situations, reducing risk and liability of future claims and workplace disputes; andAdvising employer clients on the importance of workplace policies and contracts, including preparing various employment contracts and workplace policies.

Employee Representation

Sonia has extensive experience acting for employees in a range of industries, including members of unions such as the Australian and International Pilots Association.Some of Sonia’s notable achievements have been negotiating enterprise agreements on behalf of pilots employed by the Qantas Group.Sonia particularly specialises in assisting employees who experience difficulties in their workplace including: Supporting female clients dispute their unfavourable and discriminatory treatment – she has represented many employees who were made redundant or were treated unfavourably when returning from parental leave;Representing employees at all levels of seniority, negotiate amicable separations from their employers, ensuring entitlements are secured and any additional components of compensation, where applicable; andRepresenting employees achieve the best outcome possible in workplace disputes, including unfair dismissal, general protections, bullying and discrimination claims.

Sonia prides herself on being down-to-earth, logical, and honest in her work, and seeks to be as upfront as possible with her clients while maintaining her approachability and empathy.In addition to her work in litigation and non-litigation matters, Sonia is involved in mentoring and developing the skills of other solicitors, both within and external to the firm. Sonia is passionate about supporting diverse people, including women of colour and volunteers for an organisation specialising in this, Diverse Women in Law.Sonia believes the importance of representation – you can’t be what you can’t see – and aspires every day to be a good role model and leader to her peers and the legal community more broadly.

Kevin’s employer-side focus is on assisting small to medium enterprises in growing their business with everything from crisis response to long term employment relationship management.He assists clients with adopting employer-agile frameworks to build employment culture systems, and also lead employer training programs to bolster in-house capabilities.Additionally, he advises on prevention as well as intervention in matters of bullying, discrimination, and dismissals.Although he runs all kinds of client matters, his pervious life interests in public service and healthcare have resulted in his particular focus in assisting third party human resources providers, aged care institutions, technology start-ups, and allied health care providers.His efforts have contributed to the DKL team being recognised as the Workplace Relations and Employment Team of the Year by the Australian Law Awards for two consecutive years.

Employee Representation

Kevin’s employee practice has a particular focus on assisting senior executives enforcing their rights against public financial corporations, state-owned enterprises, universities, government entities, and major corporations in the banking and technology industry. His leadership has led to DKL to be recognised by the esteemed Doyle’s Guide in the categories of Employment Law Firm (Employee and Trade Union Representation) on the National and NSW lists since 2016.

Kevin’s philosophy and approach to his work is heavily influenced by his experience as a university educator at Macquarie University and the University of New South Wales. Kevin is also a regular speaker at various CPD events, with some of his recent events being as chairs or presenters at various Thomson Reuters and Legalwise symposiums on employment law. He is regularly asked to speak on the intersection of employment law and mental health in the workplace, as well as bullying.

Kevin takes a community-oriented approach to practicing law and running the firm. He is an advocate for cultivating a people-centric culture which he believes is essential for empowering individual team members and delivering enhanced outcomes for clients. Additionally, Kevin sees employment law as an opportunity to proactively build corporate social responsibility levels across the community more broadly. His legal practice continues in a lifelong dedication to commerce and community, drawing upon the inspirations of his time as a small business owner, a card-carrying healthcare advocate, and passion for health and fitness. He shares in his successes with his wife, their daughter, and two cats.

Employer Representation

Danny serves as a trusted advisor to some of Australia’s most exciting and innovative companies, assisting them with developing policies and procedures to mitigate risk whilst ensuring they are well-positioned to achieve their ambitions. Some of her work for employers includes: Assisting with difficult separations, where the departing employee continues to be a valued stakeholder in the business, notwithstanding their termination or separation; Considering structuring and skills to better gear businesses to achieve their objectives, with careful development of communications to bring along a change-resistant team into a ‘new normal’; Assisting great teams to have even better attitudes towards shifting cultural norms; Designing solutions to assist workplaces struggling with individuals who do not align with company values, but are otherwise excellent at performing their roles; Navigating the confrontational and often emotional circumstances of poor employee performance or conduct; and Combatting applicant lawyer ‘shake downs’ when the employer has done nothing wrong.

Employee Representation

Danny’s expertise and extensive experience in employee representation positions her as a highly sought-after and desirable adviser for the c-suite and senior executives who may be navigating challenging workplace situations.She particularly specialises in assisting senior executives to play the role of ‘corporate survivor’. Some of Danny’s favourite matters of recent years include:Covertly assisting a partner in a top four accounting firm navigate the tricky politics of partnership renegotiations;Workshopping solutions with a partner of a top-tier law firm about overcoming unconscious bias getting in the way of her career trajectory;Supporting many incredible and powerful women to enhance the terms of their contracts to reflect what they would have been offered in the absence of unconscious bias;Working with a CEO of a major Australian company to navigate a difficult separation;Representing a CFO of a major Australian company through very public allegations of a damaging nature and separation terms;Creating opportunities to separate and leverage to deploy in negotiations around terms for various executives where the employer had previously no intention of discussing separation terms; andHelping numerous executives who were the subject of bullying allegations to not only manage the initial shock of confrontation and provide a response to allegations, but to successfully navigate the difficult context that comes from being named a bully, even when fully exonerated, noting that not all circumstances require a negotiation of the employment relationship ending.

As an accomplished educator who has taught in prestigious institutions professionally and while sharing knowledge with peers, Danny has enjoyed excellent feedback on her engaging and approachable style. She values the development of and investment in the future of employment law. Some of her educational achievements include:Wrote, convened, and taught the employment law course for under and post-graduate students at the University of New South Wales between 2012 – 2019;Wrote and updated the employment law course for post-graduate students in the College of Law’s Masters of Law program;Delivered the teaching of that course continuously, with up to three sessions a year, since 2017; andInnumerable conference presentations on employment law topics, including mental health in the workplace, achieving age diversity in a modern context, exposures legal and HR practitioners have to accessorial liability under the Fair Work Act, and diversity in the law.

Danny believes the needs of the human are paramount. Her philosophy is to hold nothing back and build the absolute best version of everyone in the firm. Danny is non-judgemental in her approach and retains a well-respected and objective outlook on all matters, priding herself on being the woman you can turn to, even in the face of the most difficult allegations. She is known to use the Ricky Gervais line: ‘crisistunity’, and people who have worked with Danny have first-hand experience witnessing her exceptional abilities in finding opportunities during a crisis. Danny delights in the antics of her two young children, playing cards with her enormous family, and dabbling in creative endeavours.

How DKL assisted an executive through contract negotiations

Sonia Chandra

The following should not be considered legal advice and is for general use only.

Earlier this year, ‘Right to Disconnect’ provisions were added to the raft of amendments to the Fair Work Act under the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023. 

The ‘Right to Disconnect’ has been gaining attention around the world, particularly in Europe, over recent years due to the significant increase in work-related mental health issues, many linked to stress and overwork.

Australia’s rise in work-related mental health issues of late is no different and a recent Safe Work Australia report on ‘psychological health and safety in the workplace’ stresses the importance for employees to maintain healthy boundaries between work and personal life as crucial to managing their stress.

When does the change take effect?

The new provisions become effective:

26 August 2024 for all businesses (with more than 15 employees).

26 August 2025 for small business employers (i.e. those with less than 15 employees).

What is the ‘Right to Disconnect’?

The Bill defines the ‘right to disconnect’ as the right for an employee to ‘refuse to monitor, read or respond to contact, or attempted contact’ from their employer (or related parties) outside their work hours, unless it’s unreasonable to do so.

Therefore, the ‘Right to Disconnect’ provides employees a new workplace right that if exercised, prohibits an employer from taking adverse action against them. However, it’s important to note that the legislation does not ban employers from contacting their employees after working hours, nor punish employees for not responding if they choose not to.

Instead, these changes are designed to encourage employers and employees to talk about contact out of hours and set expectations that suit the workplace and the particular role of the employee. As workplaces continue to embrace more flexible working arrangements in a post-COVID landscape, greater employer and employee engagement and agreement is critical.

Understanding when an employee’s refusal to respond will be deemed unreasonable is important, and there are factors to help determine whether an employee’s refusal to monitor, read or respond to contact is unreasonable. These non-exhaustive factors include:

the reason for the contact or attempted contact;

the method of contact and level of disruption it causes the employee;

whether the employee is being compensated to remain available or perform additional work outside ordinary hours;

the nature of the employee’s role and the employee’s level of responsibility; and

the employee’s personal circumstances (including family or caring responsibilities).

What does this mean for employees?

Whilst employees have a right to disconnect, this does not mean employees can simply ignore their employer’s contact (made outside of the employee’s working hours). Employees must still be mindful of their role and responsibilities. The Right to Disconnect encourages employees to discuss contact issues, roles and responsibilities with their employer.

Employees are encouraged to have frequent communications with their employer, especially if work can arise out of working hours, to ensure both parties’ expectations and responsibilities are clear.

Where there is a dispute about the right to disconnect and/or failure to respond to a contact, both parties must first try to resolve the dispute internally at the workplace level. If this is unsuccessful, an employee will be able to apply to the Fair Work Commission (the Commission) for a “stop order” to resolve such disputes.

What does this mean for employers?

These changes do not mean employers, or contact from a third party which is related to an employee’s work, are prohibited from contacting or attempting to contact the employee.

However, if the employee refuses to respond to such contact, employers must consider whether that refusal was unreasonable, given the factors listed above. If there is any ambiguity, employers need to be careful to not take actions that may detrimentally affect that employee’s employment, such as disciplining the employee for failing to respond. This would be considered adverse action, which gives rise to an employee bringing a general protections application in the Commission.

Employers can prepare for the changes by:

Updating their employment contracts and internal policies to include any employee requirements to work, or be in contact, outside normal working hours as well as relevant remuneration.

Setting performance expectations in job descriptions and performance reviews that includes contact and work outside of normal working hours (or foreshadows that contact outside of normal working hours may be necessary in some circumstances).

Engaging with their employees about expectations on both sides in relation to work and contact outside of normal working hours.

Where can I get more information?

To assist workplaces with adapting to these changes, the Commission is required to issue guidelines clarifying how these new rules should be applied. Once these guidelines are available, they will provide practical guidance on when refusal to work outside of usual hours will be considered reasonable or unreasonable.

Whether you are an employee or employer, if you have questions or concerns relating to the Right to Disconnect, please contact Danny King Legal for further support and advice.

With thanks to our contributor – Zeb Holmes, Senior Associate.

Earlier this year, we assisted a long-term senior executive who was employed with an automobile manufacturer.

Background

Our client received another offer of employment in the same industry and sought our advice and assistance to manage their exit from their current employment without being in breach of any ongoing obligations and to review and advise on the new offer of employment.

Our client’s existing employment contract had restraints and our client was concerned that if they accepted the new offer of employment, they would be seen to be in breach. We reviewed the contract and advised our client of the existing obligations, which importantly, did not define a competing business.

DKL’s advice and support

Whilst our client was accepting another offer in the same industry, being the automobile industry, the new employer was not in direct competition with the current employer as they were not in manufacturing and our client accepting the offer of employment with the other employer, would therefore not be in breach of the obligations contained in the contract.

We also reviewed the new offer of employment received by our client, where our client had flagged various concerns about the wording and meaning of various terms.

Our objective was to firstly educate our client – explain the various terms and conditions in their existing employment contract and the new offer of employment contract. Once our client was comfortable and understood it, we then moved to ensuring their concerns were managed – which was how the client should approach the various discussions with their existing employer and their new employer, including improving the offer from the new employer. Our client’s main objective was to not burn any bridges by ensuring they weren’t in breach of their existing obligations.

We provided our client with practical tips and guidance on managing their exit from their current employer, whilst at the same time, ensuring the offer from the new employer was not at risk, and that the timing of their departure from the old employer to the new employer was seamless.

Outcome

We were able to achieve all our client’s objectives. Firstly, our client’s departure from their existing employer was amicable and professional. Our client also. received an updated offer of employment from their new employer that addressed their concerns and included improved terms and conditions. Our client was very pleased with the outcome and greatly appreciated our help.