PDA

View Full Version : Breaking termination period contract



Private
04-09-2012, 01:49 PM
Help please

I am a HR professional and am classified as an “executive” employee on my contract, so do not work on a EBA for example, I believe it’s a common law contract, I have no one reporting to me and am not in a senior role. I have been at this employer for 2 ½ years.

As per my contract, I resigned giving 13 weeks notice. I then started looking for employment and have now been offered a new role, however they need me to start in 3 weeks. Which would mean the total amount of notice I have given my current employer is 10 weeks.

However I have put this request into my manager, and they have said no. I must stay until the end of my notice period.

There are some factors from there point of view, as it’s coming to a peak period, they have not recruited for my replacement yet and another team member has 1 week of a/l just after I would be leaving. Leaving the team with only 1 staff member.

However they could hire a temp, we have done this before.

Where do I stand in regards to this? I want to leave in 3 weeks.

The last 2 HR team members left with 4 weeks and 7 weeks notice. Also about 90% of all other employees on this “executive” contract, leave with only 4-5 weeks notice.

Is it not equitable, if this flexibility isn’t shown to me also?

Qld IR Consultant
04-09-2012, 02:05 PM
I would need to see your contract but from what you have described then no you could not leave without incurring a penalty. Most likely is they will withhold wages for the period of the notice that you failed to adhere too......I am somewhat perplexed as to why they would be you on a common law contract. Do you earn above the threshold?.....I would be looking more in depth into the legality of the "contract" you are on......

Private
04-09-2012, 02:12 PM
I'm not sure about the contract I'm on, I would imagine its just a "normal" one. I just know that our employees work on an EBA, but all "executives" are on this contract.

my package is about $65K, so no, not senior.

I've only got 1 week of a/l so i don't care about that.

But can they actually say no?

Cottoneyes
04-09-2012, 02:53 PM
End of the day they can say no, if you choose to go they can withhold the 3 weeks of notice in question from your final pay ie, if you have 4 weeks of annual leave to pay out, you will only receive 1 week.
It then is up to you to lodge a complaint with FWA and win it to get the 3 weeks back.

One other thought to consider, did you sign your contract prior to the introduction of FWA? If so, then you could challenge that the new laws over-ride the contract and you are only required to give the notice specified in FWA, which would be around 4 weeks. Again however the company can withhold the notice period and you will need to challenge it to get it paid.

This is all purely financial considerations only, also take into account if you would be leaving any future referees or the like with a bad image of yourself etc

Sonya P
04-09-2012, 03:18 PM
But can they actually say no?

I thought they already said no?

A few thoughts;

They can't penalise you financially for not working out your full notice period. They still have to pay you for the portion of the notice period that you work. You won't forfeit anything. They are still legally required to pay you for any accrued leave.

Contracts can be deemed to be unfair. I don't mean to cause offence, but $65k per year is not an "executive" salary. Who are they trying to fool? 13 weeks notice is ridiculous.

Just tell them you are only going work 10 weeks notice.

Just as a matter of interest, how many weeks notice does your contract say they have to give you to terminate your employment?

Sonya P
04-09-2012, 03:23 PM
I would need to see your contract but from what you have described then no you could not leave without incurring a penalty. Most likely is they will withhold wages for the period of the notice that you failed to adhere too......

But that's not really a penalty per se. You can't expect to be paid for more than the portion of the notice period worked.

The only exception being if the employer asks you to finish up before the end of the notice period.

Private
04-09-2012, 06:27 PM
If they where to terminate me it would be 4 weeks notice, If they where to get rid of me whilst in my termination period it woudl agin be 4 weeks, however as per the usual if they didn't want me to work I could leave but they woudl have to pay me out.

I've had a meeting with my manager today again, and he's really made me feel quite upset. pretty much saying that he can put the request through to his boss but he will not support the request unless they have a replacement for me, which will be unlikely to get in the next 3 weeks.
This whole siutation is just stressing me out, he's making me feel really bad, when i've worked really hard for this company and always done the right thing by them
:mad:

Sonya P
04-09-2012, 07:12 PM
Don't feel bad. They are clearly not doing the right thing by you.

This company has got you to sign a one sided contract. How can they expect you to give them 13 weeks notice when they are only required to give you four weeks.

Do not let them jeopardise your new job!

If you're really worried about it call the FWA for advice. Let them know that your contract says you are required to give 13 weeks notice although they are required to give you only 4 weeks notice.

Private
05-09-2012, 06:23 PM
Thanks for the advice everyone -
I did make amistake, theywould require to give me 3 moths notive for termination also.

New Q.
If they have said no and I say well i'm sorry but this will be be final date 10 weeks not 13weeks.

Can they Sue me?
Would they really?

Sonya P
05-09-2012, 07:09 PM
Can they Sue me? Would they really?

They might be able to sue you for breach of contract, depending on the type of contract it is.

BUT, even if they can sue you, there would only be any point in doing so if they could (a) quantify their financial loss, and (b) prove that it was caused by you not working the last three weeks of your notice period. Furthermore, the loss would have to be significant to make it worthwhile, e.g tens of thousands of dollars.

If you were in a senior sales role and could potentially take business away from them it would be a different story.

Also, it's only worth suing someone if you know they can pay up if you win, and also pay your costs, if costs are awarded, which isn't always the case, particularly if it is considered a frivolous claim.

Oh, and by the way, this isn't legal advice :)

BelllaElias
06-09-2012, 09:21 AM
Doubt they can sue you. We had a similar case not so long ago and the employee decided they will finish up early (gave us 1 day notice). We had already paid their Monthly wages and we simply deducted this from their final pay out and explained this to them.

They unfortunately left us stranded with no replacement, but we couldn't really chain them to the chair. The only downside out of all this is that although a great employee, the fact that they had left us without working out their notice period has left a sour taste in our mouth.

Other than that.. we had no intention of suing.

This is not legal advice, simply an example of what I went through not so long ago.