Negotiating Work Contract - Minimum Notice for Leaving Vs Being Laid off - Inconsistent Condition

SkMed on 28/09/2017 - 12:29
Last edited 28/09/2017 - 13:13 by 1 other user

Hey guys,

I'm currently negotiating a contract with my employer (I've been freelancing with thme for 3 years and going perm).

I noticed that in the contract the employer only has to give 1 week notice when dismissing you (in the 1st year, goes up to 4 weeks by your 5th year).
However it states if I were to leave I need to give 4 weeks notice no matter how long I have been working there.

I bought this up and said I want this to be equal, either both parties giving 1 or 4 weeks, or somewhere in between, as long as its equal, however they are reluctant to change it. Is this common? Seems a little unfair to me.

Other people at the office have quietly told me they cannot actually hold you to the 4 weeks stated on the contract and technically you can leave with only 1 week notice if you really need/want to.

Education & Work

Comments

  • Ocker on 28/09/2017 - 12:57
    -4

    "inconstant" - ??

  • [Deactivated] on 28/09/2017 - 12:58

    i've worked places with the sliding scale, and also the 4 week period, but they were always the same if either party wanted to end the relationship. I wouldn't sign a contract that was worded like yours

  • [Deactivated] on 28/09/2017 - 13:05
    +2

    This is common.

  • Almost Banned on 28/09/2017 - 13:15
    +1

    I assume they drafted the contract.
    You should not be surprised that they have written it in a way that favours them.
    Your response should reflect the strength of your bargaining position.

    • SkMed on 28/09/2017 - 15:37

      Yeah my manager has said I can pursue it if I want, Since i'm in a pretty good position to do so I think I will.
      My manager also agrees that it isn't fair and most people going onto contracts usually bring it up too.

      • srhardy on 29/09/2017 - 07:41

        an UNFAIR (ie, unequal) contact is UNFAIR and isnt binding in LAW. But if you sign one, you have an uphill job defending yourself against it in court.

        Get a partition going and get every employee to sign it and present it and then its not just you or join a union and ask for a REP to represent you (as is your legal right, as is a solisitor looking at it on your behalf ~ after all its a CONTRACT)

  • lolmao on 28/09/2017 - 13:23

    1 week by them is too short

  • djkelly69 on 28/09/2017 - 13:26

    Other people at the office have quietly told me they cannot actually hold you to the 4 weeks stated on the contract and technically you can leave with only 1 week notice if you really need/want to.

    Have these people advised on what basis they believe the company would not be able to enforce a (presumably) signed employment contract?

    • SkMed on 28/09/2017 - 15:39

      My manager has said there is an actual law which says you can leave with only one weeks notice in the first year, and a sliding scale from there, after 2 years 2 weeks, then up to 4 weeks at 5 years. She told me the law superseeds the contract, I asked to see this information before making a decision so she is going to forward it to me.

      • [Deactivated] on 28/09/2017 - 23:02
        +1

        That sounds an awful lot like the minimum notice they have to give you, not vice versa.

        https://www.fairwork.gov.au/how-we-will-help/templates-and-g…

        4 weeks notice is pretty standard in most FT employment contracts. Can be longer when you get to the more senior levels. In reality as others have mentioned, enforcing it on their side is impractical from a legal perspective. That said, you don’t want to throw away a reference and potential future roles with them for the sake of a week or two.

    • chumlee on 28/09/2017 - 15:57

      You seriously think an employer will take legal action to have you work 4 weeks notice (or however many weeks remaining)??? It will be 3 months at least before they get a court date. Unless OP is a CEO or just as important as a CEO, the employer will not go and get an urgent injunction.

      OP, you can give them 10 minutes notice if you like. Depends if you want to burn your bridges

      • MrHyde on 28/09/2017 - 17:02
        -4

        As an employer, I would not bother forcing the employee to work 4 weeks… they are unlikely to do a good job. What I would do is sue them for lost earnings for those 4 weeks that can be directly attributable to them not working out the 4 week notice period.

        • chumlee on 28/09/2017 - 17:18
          +5

          Lol. Good luck with that

  • JimmyF on 28/09/2017 - 13:26
    +1

    Other people at the office have quietly told me they cannot actually hold you to the 4 weeks stated on the contract and technically you can leave with only 1 week notice if you really need/want to.

    Nope…. If you leave without filling the notice period, they can deduct those weeks out of your final pay.

    • [Deactivated] on 28/09/2017 - 14:03
      -1

      They cannot deduct anything from your final pay.

      • JimmyF on 28/09/2017 - 18:27
        -1

        cough

        Maybe you should have a look here under

        https://www.fairwork.gov.au/ending-employment/notice-and-fin…

        Resignation - how much notice?

        An employee's award, employment contract, enterprise agreement or other registered agreement sets out:

        • how much notice (if any) they have to give when they resign
        • when an employer can withhold money if they don't give the minimum notice period.
        • [Deactivated] on 28/09/2017 - 18:42
          -3

          Withhold, not deduct from final payment.
          Eventually they will need to pay it, you may have to go to court to get it but they can't just keep it.

          Big difference.

        • JimmyF on 28/09/2017 - 18:50
          -1

          @Drew22: You might want to go look up what 'withhold' means.

          If you only give 2 weeks notice, when 4 is required, you think you'll get that paid out by going to court. You sir are way too funny!

        • [Deactivated] on 28/09/2017 - 19:25
          -2

          @JimmyF:
          Sorry o-great internet lawyer!

    • SkMed on 28/09/2017 - 15:40

      If I left with a weeks notice I would only expect to get paid the days I work… what would they be deducting exactly?

      • JimmyF on 28/09/2017 - 18:28
        -1

        Maybe you should have a look here under

        https://www.fairwork.gov.au/ending-employment/notice-and-fin…

        Resignation - how much notice?

        An employee's award, employment contract, enterprise agreement or other registered agreement sets out:

        • how much notice (if any) they have to give when they resign
        • when an employer can withhold money if they don't give the minimum notice period.

        … what would they be deducting exactly?

        Ducting wages to cover hiring a replacement to fill in your notice period basically.

        • [Deactivated] on 28/09/2017 - 18:43

          Ducting and withholding are not the same thing.
          You have no idea what you're talking about.

  • bobbified on 28/09/2017 - 13:27
    +1

    Employers generally won't try to hold you for longer than you want to stay during that notice period, especially if they think you're not happy or disgruntled. They don't want to risk you damaging their equipment or have you potentially doing something else that'll have an adverse impact on the business.

    This is regardless of what the contract says - at the end, it's mutual agreement in the interests of both parties.

    • fantombloo on 28/09/2017 - 13:36
      +1

      Yes, but being asked to leave "right now" and receiving 1 week's pay or 4 weeks' pay is the difference.

      • bobbified on 28/09/2017 - 18:50

        In my comment above, I was more referring to the period of notice that the employee has to give the employer.

        I'd like to have 6 months notice from the employer if I could haha.

  • ESEMCE on 28/09/2017 - 13:56
    +1

    Seems a strange sticking point given you're not a new face..
    Maybe go back to the negotiating table being prepared to accept unequal terms aiming at 3 weeks their notice, 4 weeks yours?
    Arguing that you've essentially already well on the way to your 5th year with the company.

    • SkMed on 28/09/2017 - 15:42

      My manager indicated since I have been here a while they would probably make an exception if I wanted to take it further

      • straphlinger on 29/09/2017 - 09:33

        'Indicated' is far different to 'in Writing', same as your contract. Rather than asking to change the contract, simply ask for a letter recognising your 3 years service. If you're lucky, this may translate into other benefits down the road, like access to long service leave. If you were freelancing, what was your termination payment? I think it's something like DCM, 'so long and thank for all the fish'. Now your going permanent and your worried about receiving one weeks notice, is this such a big sticking point? If it is, go back to Freelance.

        • SkMed on 02/10/2017 - 15:36

          "If you were freelancing, what was your termination payment? "

          Termination payment? Not sure what you mean there?

          Since the number one reason of going from freelance to perm is job security I think its a pretty fair sticking point isn't it? I could keep on freelance if I want to, but they offered me a god salary (less than what I'm on freelance, but not by much) and love the idea of taking a sick day and holidays and actually getting paid still.

  • Adz81 on 28/09/2017 - 14:21

    I would have thought that, even if the conditions of the contract remain the same, it's unlikely they'd push to make you fulfil the full 4 weeks if you were to give notice… In the past, all I've ever done (and pushed for), was paying the party out that was leaving their two weeks and sending them on their way, unless there was something significant that needed a hand over for, in which case contingencies should already be in place not to need the person giving notice in the work place past the two week mark anyway.

  • cypher67 on 28/09/2017 - 14:24
    +1

    Usually a 3 month probation period is normal, but 1 year is too much for a 1 week notice.

  • dizzle on 28/09/2017 - 17:52
    +1

    It's actually a standard dismissal period set out by the fair work ombudsman, which you can find below. It actually says one week is minimum notice for less than 1 year worked:

    Dismissal notice

    I think the reasoning is the longer you work for a company the more you come to rely on the income. So they need to give more notice. If you're over 45 and have worked 2+ years you get extra notice.

    Resignation notice more depends upon the role you work in - The higher/more skilled you are the longer it takes to replace you. So that is stated in your contract. Ie Casual/part-time often have 1-4 weeks depending on jobs. Managers will often have 1-3 months, and Senior/executive positions can have 3-12 months as they are often required to train their replacements.

    Resignation Notice

    The three months probation often doesn't need any notice (depending on contracts). If they meet with you and say you're unsuitable for the job, they can release you there and then.

  • crentist on 28/09/2017 - 17:55

    Mate had a 3 month notice, but was advised thats illegal so he just gave a couple of weeks when he left for somewhere better. I've even had an interviewer tell me that notice periods are the same as payment periods, to encourage me not to give the full 4 weeks notice I wanted to and join him in two weeks after my next pay. In the end, notice is about staying on good terms or not.

    Except when it's about the company trying to screw you out of money by reducing their own obligation when sacking you. Seems dumb for them anyway. Sure it's easier to get rid of people, but as an employee I'd be spending my days wary of getting too committed to the situation. Every time I think about a major purchase or lifestyle upgrade, there's a little bit more "what if?" that would have me living below my means, ready to jump at any moment and feeling financially insecure.

    Maybe its within the guidelines but depending on the work, pretty crap

    • dizzle on 28/09/2017 - 18:08

      The difference is:
      If you are required to give 4 weeks notice and your employer says don't bother coming in. They still have to pay you the 4 weeks.
      If you are required to give 4 weeks and say I'll only work one week, they don't have to pay you.

      Be careful though because you burn bridges and it could come back to bite you. You may also need them for references in future.

      I knew someone in retail that gave notice and then said "My training for the new job starts in two days" so I won't be in again. 6 months later the new company actually leased space in the first retailer and he was put in the same store as a concession manager. The store said they couldn't trust him working there and he was let go as there were no other positions he could take.

  • Dont Care on 28/09/2017 - 19:02
    -3

    You sound like you are likely to get fired or you don't want to stay so do everyone a favour and just leave now.

    • SkMed on 02/10/2017 - 15:45

      lol, errr, neither of these are true and i'm really not sure what makes you think either of these would be true…

      I work in an industry which changes fast and jobs come and go with clients, I'm very unlikely to get fired and very sought after in my industry, however I could be let go simply due to the work not being there is we were suddenly to loose a few big clients.

      Not sure what part of my question makes you think I don't want to stay?…

      • Dont Care on 02/10/2017 - 18:17

        Right so I suggest you go see a workplace relations lawyer.

        • SkMed on 03/10/2017 - 10:06

          Really? That seems a bit excessive doesn't it? I'm on great terms with my employer, we are just negotiating a work contract.

        • Dont Care on 03/10/2017 - 20:31

          @SkMed: You came on an online forum for advice. You are hardly in a position to know what is excessive.

  • gidxg03 on 29/09/2017 - 08:40

    Doesn't matter if it's fair or not you signed the contract. The time to negotiate and discuss contract terms is before you sign it.

    • SkMed on 02/10/2017 - 15:40

      I haven't signed it yet lol, it says i'm negotiating it now in my post!

      • gidxg03 on 02/10/2017 - 17:30
        +1

        Apologies. Now is the time to negotiate then! Good luck.

  • [Deactivated] on 03/10/2017 - 14:07

    Just to be clear, is the one week notice for any reason whatsoever ie they can get rid of you for no reason if they give you one weeks notice?

    • SkMed on 03/10/2017 - 14:25

      Pretty sure by law no one can get fired for no reason… would fall under unfair dismissal wouldn't it?

      • [Deactivated] on 03/10/2017 - 15:01

        Nope.

        Most employment contracts (if not all) have clauses in them which allow either party (including the employer) to terminate the employment contract for no apparent reason upon the giving of notice.

        Just wanted to confirm that is what the OP is referring to.

        If so, one week is not very reasonable period and should be extended up to at least 2-4 weeks; think long term your income would literally cease after one week and yo would be hard pressed to find and commence a new job within a week.

        I would push very hard for a minimum of 2 weeks.

        Worst case, if they want you to immediately leave, they can simply pay out your entitlements and move on (ie two weeks wages plus statutory entitlements).

        • SkMed on 03/10/2017 - 15:48

          Really? Ive never heard this and nothing I have ever signed says they can sack you without a reason. Doesn't say anything like that in mine. Says they have to give me x amount of notice and I would assume there would need to be a valid reason, otherwise the unfair dismissal law would come into play…

        • chumlee on 03/10/2017 - 15:57
          +1

          Only in probationary period they can terminate your employment without reason or if you are a contractor etc.

          Never heard of this in a "normal" employment contract and it cannot over ride common law such as discrimination

        • SkMed on 03/10/2017 - 16:03

          @chumlee: yeah thats exactly what I thought. The main reason to go on a contract instead of staying Freelance is for that job security, if this were true and they could just sack you without reason there wouldn't really be any point in going on a contract lol. I think he must be thinking of the probationary period…

        • dizzle on 04/10/2017 - 21:14

          As stated above, you should check out the actual sites with information as opposed to listening to others that believe the know the rules.

          Fairwork states that 1 week is fair enough notice for someone working less than a year:
          Dismissal notice

          You can also find links on there for unfair dismissal.

          My best form of generic advice is you shouldn't go into a job considering you will be unfairly dismissed. If you even think it's remotely a possibility you shouldn't take that job.

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