Thread: employee rights

Originally Posted by Toolin Around

I've been given an interesting proposition at work. They want me to do a job that I don't want to do and no one else does either. Problem is there is no one else that could probably pull it off other than me. Not that I'm anything special... But I work with a lot of monkeys... The options I've been given are take the new position or there is nothing here for you to do... So I haven't told them yet but I'm almost certain I'm gonna pull the pin. Since in the past they haven't been all that nice to others they have let go I figure turn about is fair play and I'll make the resignation effective immediately. What sorts of rights do I have with respect to money and such owning. Do they have to payout outstanding holidays and such...

Not if you don't give them notice! Well they probably do, but it might cost you a fortnight's pay, and a lot of grief.

Cheers,

P

Toolin,
I believe most awards or AWAs would have a clause stating an employee must give a minimum of 2 weeks notice otherwise the employer is within their rights to not pay annual leave entitlements for the period specified.

Pay to do some checking even though the old "you can stick your job" feels good it might also be costly.

Ah Midge beat me to it

Cheers
Mike

If you resign and give proper notice, they are entitled to pay you two weeks in lieu as well as your entitlements, and tell you to go now.

What's the smarter option?

P

TA, what you describe sounds like redundancy.

Look around here http://www.wageline.qld.gov.au/index.html for your award, and it's redundancy conditions, notice required, etc.

Well worth your while to know exactly where you stand.

Just do a crap job and get em to sack you and get two weeks severance pay

TA

Just been through this myself.

You need to check your EBA or award or whatever you are employed under.

If YOU give notice by the award (probably 2 or 4 weeks depending on how long you have been there) you are entitled to outstanding holiday and Long service leave - if you are past the qualifying period.

If THEY put you off as there is no work you are being made redundant - this is what happened to me - you then get 2 or 4 weeks notice (same as you had to give) all holiday and Lomng Service leave and a redundancy pakage.

When my position was eliminated in a staff reshuffle i got the following after i had been there 5 years
4 weeks pay in leiu of notice - (before 3 years it is only 2 weeks)
4 weeks annual leave owing
10 weeks redundancy pay - 2 for each years service
1 week extra because i was over 45 years of age.

If i had been there 7 years i would also have been entitled to 7/10ths of 13 weeks long service leave.

So my advice to you is let them retrench you or sack you - dont leave you will get no redundancy payment what so ever. In fact if you leave immediately they may allow you to take holidays as notice or they are entitled to withhold the 2 or 4 weeks pay in leiu of notice.

Hope that helps

cheers

Don't get too excited about redundancy. You aren't redundant if they've offered you another position.

Cheers,

P

Following on from outback's comment - another name for it is 'constructive dismissal' or something similar - shifting you sideways into a position that they know you can't stay with in the hope of forcing you to resign. I believe the courts treat it as the same as 'wrongful dismissal' - you may want to see a smart industrial lawyer.

Hi,

I have worked in HR/IR for 30 years and the above posts cover most scenarios pretty accuaretly. If you don't give the required period of notice specified in the relevant employment instrument - (agreement, award and/or letter of appointment) then technically you have breached your employment contract and they could withold some or all of your entitlements. Best to give the required period of notice - in most wages jobs that won't exceed 2 weeks. salaried jobs may be a month or more.

The concept of constructive dismissal is difficult - i.e. you would have to prove that the job offered to you was unreasonable (unsafe, impossible to do, extremely onerous or outside of your skills) and essentially a contrivance to get you to leave without having to sack you. Difficult to provide evidence and in any event you would need to initiate proceedings in an appropriate jurisdiction. With the current IR laws access to unfair dismissal proceedings is more limited. For e.g. if you have been with the employer for less than 6 months or the employer has less than 100 workers then you may not have access.

Heed your colleagues advice and resist the temptation to tell 'em to put the job where the sun don't shine.

Please regard this as friendly advcie only. if in doubt consultant a lawyer.

Good luck.

Dimma20

Just be nice. Karma Earl

When its time to go, GO, stuff a few lousy dollars just go.

TA,

First thing is, are you in union. If not join. If you are, go and talk to them and explain your position. Under no circumstances do anything like telling them to shove the job where the sun don't shine. Don't tell them you are seeing the union either.

I was in a similar position with a very high profile company (they are on the news eveynight). The union supplied the lawyers and it went all the way to the Industrial Relations Commission. The Deputy Commissioner sat the case and basically laughed at them. I was with tis company for 25 years and I ended up getting a redundancy package.

Steve

Originally Posted by dimma20

Hi,

I have worked in HR/IR for 30 years and the above posts cover most scenarios pretty accuaretly. If you don't give the required period of notice specified in the relevant employment instrument - (agreement, award and/or letter of appointment) then technically you have breached your employment contract and they could withold some or all of your entitlements. Best to give the required period of notice - in most wages jobs that won't exceed 2 weeks. salaried jobs may be a month or more.

The concept of constructive dismissal is difficult - i.e. you would have to prove that the job offered to you was unreasonable (unsafe, impossible to do, extremely onerous or outside of your skills) and essentially a contrivance to get you to leave without having to sack you. Difficult to provide evidence and in any event you would need to initiate proceedings in an appropriate jurisdiction. With the current IR laws access to unfair dismissal proceedings is more limited. For e.g. if you have been with the employer for less than 6 months or the employer has less than 100 workers then you may not have access.

Heed your colleagues advice and resist the temptation to tell 'em to put the job where the sun don't shine.

Please regard this as friendly advcie only. if in doubt consultant a lawyer.

Good luck.

Dimma20

Thanx for all the replies - they're greatly appreciated.

Well proving that I it was outside my skills would be easy. They want me to be the estimator - I've never ever done any sort of estimating.

It is also unreasonable in that the bosses are the sort that set people up to fail. I don't mean in a personal way, but they're the sort that dump a job on your lap then run away as quickly as possible to absolve them of any responsibility. There is little if any support and the resources, i.e. information, compete drawings... needed to complete the job in a timely fashion are few. I made this comment to one of the supervisors a couple weeks ago that I was being set up to fail. He ran a tattled to the owner... the owner hauled me outside and told me if I didn't like how he ran the place I could leave, then proceeded to lecture me on how I should be better than that...

I was a bit cranky last night when I wrote this and that was what I was thinking in simply walking out but I'm calmer today. So now I'd developing an exit strategy.

If I did simply walk out it would cause a great deal of turmoil for them. I'm not in the position where money is a problem but there are jobs there I'm in the middle of and tasks that I do on a weekly basis that no one there knows how to do. They would stand to loose a lot of money and incur a big spike on future on going costs because they would have to out source those tasks. So in some nasty sort to way I would get a lot of satisfaction in doing that. But I have to keep reminding myself that I'm suppose to be better than that. At least that's what the owner has lectured me on...

I'm not part of a union and at this stage I don't think joining one would help. As far as I can remember I haven't signed any sort of agreement so I guess I fall under the state awa. I do have a letter from two years back stating I passed my probation and am now a permanent employee...

So my options as I see them are - correct me if I'm wrong.

1) I stay and let them fire me. I make my wishes known that I don't want the position do to lack of skill, resources... That shifts the obligation to them to pay me out and I may be entitled to more that way...

2) I pull the pin myself saying the options are unreasonable... That means I loose the advantage in that I may not get some payments that I would if I were fired. Another advantage is I get to say to the next employer that I pulled the pin and left on my own accord due to... Trying to explain to a perspective employer that you were fired but it wasn't your fault... is near impossible to do well...

What ever I do I think need to make a paper and or email trail.