Can you legally advertise a role before there has been a resignation or termination??

[rschroeder1977]

I have been in HR for about 6ish years and never come across one like this before and unfortunately it pertains to myself so I need some advice.

I was hired just over a year ago to take on the HR Manager role for a national company which was in a time of change due to growth. They sold me on the role as I wanted something more strategic and challenging and thats what I was told it would be. Once I commenced the role it became apparent only after a few weeks that what I signed up for wasnt what I was going to be doing and it was mostly recruitment based. As I believed they wanted someone with a different scope in the role I put my head down and tried to make changes within the organisation. After six months and only ever having 1 meeting with my boss the MD where he proceeded to tell me I was too outspoken or to be exact "I had a big mouth" I began to realise this wasnt the role for me. I had also at this point in time come to realise that the culture of the company was negative and toxic and it was impossible to get staff to stay due to the culture and the lack of competitive salary.

The past two months have been particulary tough as we have numerous unfilled vacancies, an embargo on recruitment agencies and a constant stream of unhappy staff complaining to me about the management and their crappy salaries.

I send the MD an email outlining my issues and I get a vague response from him that he will not increase base salaries unless the operations manager gives imput on the matter. So I forward the response on and await a response from either of them. The ops manager and myself do not see eye to eye as the ops manager is the main instigator of the staff general unhappiness and is an outright bully to the staff and I have pulled them up on that on numerous occasions which has also been to my detriment as I have questioned the inappropriate management style and you shouldnt speak out.

To cut a long story short I get summoned to the second meeting with the MD in just over a year (great mentor that one) and he tells me I am incompetent for suggesting the salaries are not attractive enough and I should consider where I want to work cause there have been complaints about me. When I question as to who has made the complaints I get the 'thats not important response' so I respond with 'a statement like that should not be made if it cant be backed up'. I know it was the ops manager who made the complaint as unfortunately for meI am a target cause I dont agree with the culture.

So I decide time to get out and begin looking for another job. Looking on seek I see my role advertised under a recruitment agency banner with a different title. I have not been through any formal warning/performance management process nor have I resigned. I feel I am going to be made redundant in the not too distant future so they can get rid of me. I want out anyway but what if any options do I have right now??

I dont see it as a genuine redundancy as they still have a need for the role and they have played down the responsibilities of the new role so they will say I am overqualified and cant be redeployed. Just out of interest I am the 4th HR Manager the company has ahd in 2.5 years and have stayed the longest.

Financially I need to stay until I land another job but my confidence in my own abilities has been so smashed I am considering getting out of HR altogether. I never had any of these types of issues in my previous role (only left it cause I moved interstate for family reasons) and my working style is no different.

Can they legally advertise my job before I have resigned or been terminated?? Also any other suggestions on how to handle this would be great!!

[arowe]

Basically, in answer to your question "Can you legally advertise a role before there has been a resignation or termination, a company can probably advertise any role they want, whenever they want. It's what they end up doing to you and your role is where you need consider your options eg Constructive dismissal, genuine redundancy and your lawful entitlements etc, and keep documented notes on the activities and conversations you've been having. I would also make a copy of the advertisement that you've seen for your records.

Just remember, that while yes, there are legal issues you need to consider (keep your HR hat on and think about what they can/can't do to you) consider the fact that the job may not be what you want anyway, and your health is important too! Fight for your rights, but fight for your health too!

[HRIMHO]

Good post arowe, I agree... though one thing I'd add is that advertising a job that doesn't, or isn't likely to exist might be false advertising and subject to the Trade Practices Act. I've heard occasions where I think the ACCC have taken action against companies for false/misleading job advertisements.

Whether or not this changes your employment situation though is another thing!

[HRAaway]

Depending on the circumstances a company can adevrtise before a termination - they may suspect that you are going to resign so they might be covering their bases. I would say that their strategy is high risk though considering the conversations that have occurred with you. They risk constructive or unfair dismissal depending on what has been spoken of and what action is taken. If you are performance managed the courts could view the advertising of your role as not being fair or reasonable, in that they pre-determined the outcome, ie your termination.

I would suggest formally requesting a meeting with your manager, advising him that you have noticed your role being advertised, that you refer to rpevious conversations where it has been alluded that you are not performing, and asking to sit down and go through all of the issues that he feels exist so that you can work on them together in a fair and just manner. If you are comfortable, point out that if there are performance issues, and they are advertising your role, the best practise approach is to discuss them with you formally and provide you with the opportunity to respond and improve, and that the actions they appear to be taking are legally questionable. (or something more polite than that perhaps.)

[kevinh]

Looking on seek I see my role advertised under a recruitment agency banner with a different title.

Are you absolutely sure it's your job?

[Pete]

kevinh hit the nail on the head - are you absolutely sure it's your role, advertised by your company?

If it is a replacement for your role, then I can't believe they would be that stupid. This would be very strong evidence to support a constructive dismissal claim - an outcome (your exit) has already been decided as likely. An employment relationship is founded on trust and confidence, an employer can only terminate and employee only after a full and fair investigation leads to the fair conclusion that trust and confidence can not be maintained (i.e. that the employee is unable to complete the duties of the role within the standards of performance and/or behaviour required).

Personal advice - I would strongly suggest you approach an experienced advocate and discuss the situation and your options, with a view to getting very clear and impartial advice, based on the full facts, before you do anything rash. If you want out and your boss wants you out, you may be able to get a reasonable exit package negotiated, including an agreed reference.

General HR comment - I would suggest that an employer should never advertise a role that is not vacant (i.e. a resignation or termination has not been made yet). For a number of reasons, (obviously because there may not actually be a vacancy - intentions change all the time) but primarily to avoid claims of unjustified dismissal. If an employer is aware that an employee is contemplating leaving and that there is anything in the workplace contributing to that decision, by not acting on those issues the employer is directly contributing to the situation that is "forcing" the resignation and by advertising the role is acknowledging the likely exit and approvong off that exit, QED - constructive dismissal.

Cheers

Pete