In the lead up to Christmas, we had a media enquiry as to whether employees who waste time at work doing online shopping risk disciplinary action or dismissal? A good question! Australians were tipped to spend close to $8 billion on Christmas presents for 2012[i] _ so an employer would be well entitled to ponder the cost to their business of online shopping during business hours!

Horses for courses…

As a general response, the extent to which employees are entitled to use to their employer's time and computers for personal internet usage largely depends on the attitude of the employer.

There are some who are fairly relaxed and allow employees, within reason, to do what they need to do online providing they get their work done.

Others are restrictive to the point of barring employees from having access to any site other than those that are strictly work related. This is often the case in workplaces requiring a high level of security.

Some employers are flexible about employees using the work computer to do their own online business, say during lunch or out of hours, but stipulate that such usage is not to take place during work hours.

Assume nothing!

There is an obvious presumption that employees are supposed to be doing the business of their employer during work hours and using their employer's property and resources for that purpose.

Often these matters are covered by the employee's contract of employment or by a workplace policy set by the employer regarding personal internet usage.

Even if there isn't any express reference in a contract or a policy, employees should certainly not assume that they are entitled to do their online shopping during work hours.

Employees should also not assume that their employer is unable to check up on the sites they have been visiting. As an employer, you can usually readily access this data from your internet service provider.

Cutting to the chase…

While it would be highly unusual circumstances in which a one off instance of online shopping could justify grounds for dismissal, it could potentially lead to disciplinary action and eventually dismissal if the usage is kept up. Each case obviously will depend on the circumstances.

The take home point for employers is to have a clearly articulated and readily accessible policy in place which sets out the extent to which employees are permitted to utilize the work computer for personal matters.

For employees, don't assume that your employer will allow you to use their time and their property for your own purposes. If in doubt, check. And if the answer's no, leave it until after 5!

If you would like to know more about this topic, feel free to give Mitchell Zadow a call on (03) 8561 3318.

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 a member of our Legal Team

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.

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In the lead up to Christmas, we had a media enquiry as to whether employees who waste time at work doing online shopping risk disciplinary action or dismissal? A good question! Australians were tipped to spend close to $8 billion on Christmas presents for 2012[i] _ so an employer would be well entitled to ponder the cost to their business of online shopping during business hours!

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 Supreme 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 published on the Supreme Court website for at least 14 days prior to any application being lodged.

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 usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes 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 or Letters of Administration. 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.

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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Does your employee shop at work?

Horses for courses…

Assume nothing!