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ADVICE NEEDED: Work Problems

Discussion in 'The Pub' at netrider.net.au started by lowercase, Jun 1, 2010.

  1. So, I’ve worked at my job for 3 months and 1 week now. The contract (a 1 year contract), states that I have 3 months prohibition and then I am a full time employee.

    I have had two sick days due to being very sick, yet gave them notice of my absence and provided a very valid doctors certificate. I have been late to work 4 times – the worst being 20 minutes, the least being 5 minutes.

    I’ve been a diligent worker and put everything I have into this job and a LOT more, consistently doing other work NOT specified in my contract, such as proof-reading for the office, putting all contact lists together and making and completing a folder for ease of use for my colleagues and myself for the job we do.

    NOW... As one guy has had at least 6 sick days (he’s worked same amount I have) and has had a 1.5 week holiday (and arrived late plenty of times), a girl has had 3 days sick leave (also consistently late), and the other guy has had 3 sick days and arrived late on many occasions – (plus we’ve gone through two other employees who were hopeless) – they are drafting a letter today to give to us tomorrow to EXTEND OUR PROHIBATION period. Is this LEGAL!?

    I can understand them wanting to do it to some of the employees who have been slack – but why the hell am I included? And I REALLY need to find out ASAP if it’s actually legal.

    In our contract it states that out prohibition period is 3 months, but it does not state if it’s subject to change. I signed the contract so I could have the EASE and the LACK OF F*CKING STRESS of not being a damned casual, being ABLE to have sick leave or holidays... YET I am now in this position.

    Can someone PLEASE help. I’m already uneasy with this workplace due to one employee, but this is making me really uneasy and I just don’t know what to do, or what my legal rights are.
    Thanks,

    lowercase


     
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  2. well ur lucky i have studied some IR laws and stuff, but this seems too specific, ill refer to my friend thats studied torts and contracts, and ill help on my side of IR,

    first a few questions, is the company massive? i think to classify as a large company more then 20 or 500 employees?

    it could be in the grey area, that you were not successful to graduate from a casual to a full time employee, and so they will rewrite another contract keeping you on for another 3 months probation, so in other words they say you have not achieved the standard to be classified as a full time employee, but you havent been slack enough to be fired, so we will keep you on for another 3 months to see how you go.

    sounds very familiar to what my best friend has been under, he currently works for telstra in a inbound call centre, he was hired from julia ross, and they done that same contract, he was kept as a casual for like 18 months, new contract every 3 months, before his performance review + tartiness was improved, then after that he was offfered full time position. he still works there now and is somewhat over the job, but yea, honestly lowercase if you are not happy where you are working, have a review of your 3 months and think about the job, what you want to do and your goals in life. the reason why they keep you as a casual is because the casual workforce is expendable and they know that it is cheaper for them to keep you on as a casual, and you get no benefits that the full time employees enjoy, plus no redundancy package, that they can fire you any time, all in all it is like a step off a AWA, keeping a workforce casual, limit the entitlements and pay, and you can be fired without any reasonable excuse.
     
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  3. Yes it is quite legal at the end of someones probation period to extend it rather then terminating them if you are unsure if they are working out or not.. Most places do 6 months probation these days instead of 3 months for this reason.

    I am a tad confused though when you say;

    Is it a contract or a full time position, it can't be both. A contract can have a probation period clause, but full time implies the job is on going.. a contract is for a set period of time as agreed and once it is over they can terminate you without reason which you cannot do with full time employee's.

    The laws on dismissal and rights differ greatly depending if the company has 100 or more employee's, and if an ECA is in place. Personally if they are asking to extend and you like the gig just extend it otherwise leave.
     
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  4. I just popped this question to the HR dept here and I got more or less the same answer as diomac has said. Its legal, but not really nice.

    As part of the National Employment Standards that were introduced last year, everyone has a six month qualifying period, regardless of their position. So the three month period was not really finite in the first place.

    She does suggest that you ask them why the probation is being extended, and get the reasons why on paper - just in case.
     
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  5. It's just so pathetic, and I don't understand why I'm copping this crap too.

    It's a smaller place of about 30 - 50 employees.

    The contract was VERY specific in stating that I was a permanant / full-time employee, once I had completed 3 months prohibition. IF I was not up to standards, I would be fired - simple as that. Not just fecking dragged on like I'm nothing.
     
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  6. Just quit.

    9573490674905674 better jobs out there
     
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  7. Do that, but do it politely. On another note, I have never seen/heard of a contract that promised full time employment while only being an agreement to a probationary period, was this merely a word of mouth guarantee?
     
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  8. How much time do you spend on netrider during work hours? Employees can track every single click that you do on the internet and can see the length of time you spend on each page.
    ...just a thought.
     
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  9. Yeah, thats because it doesn't really work like that AFAIK.

    You accept the position, and thats that. You've entered the agreement. The 'probation' period is there for the companies benefit only, and like I said the NES dictates that there is a six month period where you can be canned without explanation anyway. Once this period is over it more or less means that they have to justify your dismissal beyond "it wasn't working out"

    So really, they aren't promising you full time employment after a probation period, they're offering you full time employment with a probation period of the first X months.
     
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  10. I'm sure you mean PROBATION, but for an older guy like me 'prohibition' has all sorts of interesting overtones :LOL:.

    Employers never tell you the real reason for what they do; maybe they're going to get taken over and they have to downsize before the buyer will commit....

    Anyway, tell'em to go hang and get a job closer to home..
     
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  11. Can you drive a forklift? I got a job for ya :p
     
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  12. ..Oh faaaarkkkkkk!!!...... 8-[
     
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  13. Well all contracts have the 3 months or whatever probation and then you're permanent.

    "I agree on commencement of my employment with ______________ that upon the end of my employment with _______________ and for a period of not less than 12 months."

    "Probationary Period

    I understand that I will be subject to a probationary period of three (3) months, starting from the effective date as listed at the beginning of this Employment Agreement. During this period I will not be eligible for any form of leave. Any documented days off during this period will be treated as leave without pay. I will not be considered a permanent member of staff during this probationary period."

    "Review

    My employment will be subject to a review, where my effectiveness in satisfying the above requirements will be measured. This Review will take place on or near May 2011, with future annual reviews being undertaken each year. No salary increase will be considered until completion of this review."

    ^^ all copied from contract.
     
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  14. It's nothing to do with that.
     
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  15. Oh shite - I forgot to mention!! ...

    I have worked one week off the probation period (sorry I spelt it incorrectly before... It's been one of those days) - and I was sick for two of those days (very valid actually - not just chucking a sickie), and was paid for them AS IF I WAS A FULL TIME EMPLOYEE WHICH I AM/WAS!!!

    So how the hell does that work?
     
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  16. Im still confused; are you a full time employee (ie have you been accumulating sick leave)?

    all full & part time employees (as jirf88 said) are subject to 6 months of probation if you are working for an employer with more than 15 employees. So if they offered you a contract (?) stating 3 months then you were lucky... if you have signed this agreement (i assume its part of their enterprise agreement?) & passed the probation period then as per the contract you are now entitled to full time employment. Unless the agreement states that they can extend the probation period or something like "subject to approval", then they should be bound by that contract.

    if you are a contractor then the new Fair Work system actually gives you more rights than before: http://www.fairwork.gov.au/Fact-she...ntractors-Employees.aspx?role=contractors#how

    you should really call fair work on 13 13 94
     
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  17. I'm a full time employee. I have been accumulating sick leave & holidays etc

    I'll give them a call tomorrow!

    Thank you es!
     
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  18. contactual law is a sticky subject, for many reasons. but to me it seems very cut & dry, you saw out your contracted 3 months probation, became a full-time employee garnering entitlements such as sick/holiday pay, and now they're trying to bust you back to probation. to an outsider that looks very much like breach of contract. you signed for 3 months probation, if there's no provision in your contract for a review/extension of probationary period you pretty much have them by the balls.
    choices here are pretty simple, either you sign or you don't. just remember though, there are consequences either way
     
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  19. You think?
     
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  20. Probation is a funny beast, because the legislation (Fair Work Act 2009) doesn't actually talk about it. The legislation sets out that if you come under the federal system then the unfair dismissal laws do not apply for the first 6 months of your employment (12 months for a 'small business'). Now, a key part of most probation systems is that you might be sacked if performance is not up to scratch, which of course is why that 6 month exemption to unfair dismissal is so handy (and why so many probations are 6 months long). But probation may have other conditions which apply which do not relate to being dismissed - such as restrictions on leave, redeployment, bonuses, etc. These will most likely be dependent on your contract, though legislation or other industrial relations instruments (awards, agency agreement, etc) may apply to particular items.

    Another important point is that the legislation/industrial relations instruments often set minimums (or maximums, as the case may be) that can be altered by your contract. A classic example is wages - if your contract has you being paid $20 per hour, but your employer decides to start paying you only $15 per hour because that is 'all the law requires' as it's the minimum ware in your industry award then you should quit, and your employer is in some trouble (and owes you money!). A contract is still a binding legal document, and its provisions are legally enforceable insofar as they are not contrary to law.

    For the OP, careful analysis of your entire contracted is needed. You could, for example, have a situation where the unfair dismissal exemption will continue to apply until you have hit the 6 month mark, but the contract clearly sets out that the other probationary restrictions have ended (ie. your probation is over, but you can still be unfairly dismissed). But also look closely to see if your employer can extend the probationary restrictions. Another thing to keep in mind, if you push the point don't be surprised if they choose to exercise that unfair dismissal option - always remember that the other party have rights too, and their rights may turn your action into a pyrrhic victory. It may be worth just bearing the insult of the extension of those other restrictions.

    One last thing, while there is a 6 month exemption to unfair dismissal, there is no exemption to unlawful dismissal, which is a very different beast. Note to any employers out there, sacking pregnant women or disabled employees is a great way to get sued ;)

    note: The above applies to employees of employers who come under the federal IR system. The difference between an employee and a contractor is important, but determining which one you are is tricky (and no, calling someone a contractor does not make them a contractor). Employers who try to cheat their way out obligations such as PAYG, Super and insurance by declaring all their workers to be contractors often find out the very expensive way that it is not that simple. In addition to the 6 month exemption, there are others which apply to unfair dismissal, but I'll assume they are not relevant here.
     
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