Hi guys,
I was recently made redundant as a contractor. No reasons provided and no warning. I was doing really well too.
Just provided me the notice and said off you go.
What are my rights? I called up fair work, and they said can’t help me.
I would really like to know the reason for the notice so that I don’t make the same mistake (if I made any next time).
Any suggestions of what my rights are?
Thanks!
Musta been a lovely day…
Thanks, Nick Nolte and I hit the town… (with masks on of course…)
It seems Justin Langer might be/has been offered the job of coaching the English cricket team. Now that would be the epitome of selling your services to the competitor/enemy.
I have been a Contractor for almost 15 years.
It has been financially rewarding and has fast forwarded many financial goals, however Contracting has pitfalls that all contractors sign into when they go down this path.
There can be many events that can cause disruption to contractor tenure.
Just some off the top of my head :
At any time you can be let go with virtually no warning, or even have your contractor rates changed within a contract. I have seen it all across many different industries.
You get paid more to balance off this risk.
You have no recourse unless there is some criminal conduct.
You are in Perth.
Every second day someone is calling me / checking my LinkedIn or Seek Profile in Perth.
Ask yourself if you're really a 'contractor'. You'll be told you're a contractor but that's just language not law.
I would really like to know the reason for the notice so that I don’t make the same mistake (if I made any next time).
Hint: Have you tried approaching your direct line manager, asking for said feedback?
I did! Unwilling to provide feedback.
Sounds like you rubbed someone up the wrong way then and as a contractor you are shown the door and paid out as per the contract.
I think so too now!
@techlead: My immediate managers would love to keep me but the decision has come from the higher ups :/
No. It's more likely money and budgeting. Contractors are always the first out the door. Casuals next.
@Typical16-bitEnjoyer: In this case not. They have the money and budget. They are actively hiring people. I actually think I might have pissed someone off…. That’s why i was curious about the reason.
also could be something like someone else did something wrong and you are thrown under the bus to smooth it over.
in this day and age where people would/could sue for anything, no response is probably the best way to cover themselves.
even if you managed to get something out of them, it will just be a generic canned response.
basically it will be "it's not you, it's me".
There was good advice here already.
Firstly, you need to establish whether you were a contractor or employee. There a bit of grey area here, but if you were free to leave and go at your will, used your own tools/equipment, were able to subcontract your work (fully or partly) then most probably you were a contractor. In that case you will need to read your contract.
If you had to come/and go at fixed hours, work under guidance/directives of your employer, used their tools/equipment and were not able to subcontract, then you likely were an employee. (There are more criteria involved though to determine your status exactly exactly). In that case the whole Pandora box opens that may lead to potential reinstatement or backpay of your notice, entitlements etc. Having said that, if you worked for a large company, they already should know the difference very well and must have covered themselves.
There is one more thing though. If you are not vaccinated as per CHO directives I do not like your chances:(
If you had to come/and go at fixed hours, work under guidance/directives of your employer, used their tools/equipment and were not able to subcontract, then you likely were an employee.
I don't think this can be the way it is determined as IT contracting is very common, and they have to come and go at fixed hours (can't work any extra without prior approval), definitely have to work under directives (only on the project they are engaged for), use the computer and equipment at their assigned desk, and can't subcontract.
So they may be employees
No, they're definitely contractors
@Arigato: Because that's how the IT industry works (in Canberra at least). Government departments can either hire permanent APS or EL staff that will work across multiple projects or BAU work, or they can hire contractors just for specific projects.
@Quantumcat: But that is not always the determining factor now in dismissal cases. Check the ABC News website and they have a story about the High Court making a determination that a contractor can still be unfairly dismissed.
Quote: "The majority of the High Court bench today found there was a distinction between a contractor conducting his own business and a worker serving the business of the employer, irrespective of any contracts signed."
It boils down to how you were employed by the company.. if a contractor was employed to serve or supply services. A distinction perhaps only a judge can make.
@Ruprect: The high court ruling is irrelevant, it was about low skill jobs were the employers were basically trying to work around employment laws and benefits by classifying workers as contractors. This is not how the IT industry works, you get paid premium rates and usually work through contracting companies and work at the whim of the government/company that is currently paying your contract, you are fully compensated for the potential randomness of your employment. That is completely different to the issue the high court was discussing.
I manage contractors and it only takes 1 reason to hit the eject button. Although I wouldn't take a stealth termination approach as I believe everyone deserves an answer.
You must know your work, the importance, or lack of importance of your own work.
I can guarantee that if you were important you wouldn't be in this position.
As a contractor you must have an idea of your relevance and relationship to the business or direct line manager.
If you haven't figured this out that could also be partial reason why.
If you must know, take a step back and review your relevance to the business. You need to know your game.
Yeah best Brown Noses win hehe:)
Nothing. You're a contractor. It's in your contract that they can give you 2 weeks notice.
Or 1 hours' notice
Or zero notice
There's nothing you can do. That's the life of a contractor, is this your first contractor gig? The point of a contractor is that the company has the flexibility to cut you at short notice, in return, you should get a premium over the permanent employees.
I personally don't think its worth it being a contractor. I've been a permanent employee my whole career. The extra pay for contractors is just not worth it.
It really depends on the type of job. The best thing of being a contractor is you can set your own pay rise at contract extension. If you are good and you know your employer can't really lose you they will sign the contract.
Someone I knew was working as a contractor. He hated the work and didn't want to renew the contact, but he also didn't want him be the one doesn't want to renew the contract. So, he put in a massive rate increase hoping his employer would let him go. To his surprise, they whinged a bit but they accepted the new rate, and he was stuck there for another year.
Tell me why? I just want to hear you say, I want it that way.
Ain't nothin' but a heartache.
Unfair dismissal
Does your termination violate any terms in the agreement you signed to accept this role? If not, could you please elaborate on why you think the termination of your contract is unfair?
I would really like to know the reason for the notice so that I don’t make the same mistake (if I made any next time).
This need not have anything to do with you. It could just be that they don't need this role any more, or they're cutting costs or any other reasons unrelated to you.
If you really do need to know the reasons then you should contact the company whom you worked for. Simply send a polite email asking if they could explain why the contract had to end as you thought it was going well.
But in all fairness I personally think that your time will be spent finding another job.
As a contractor you get higher rate but lose benefit such as super, leave and termination notice (typical 4 weeks). Read your contract. If your contract ended it is within their right to not renew/extend the contract. If they dismiss you before the contract ended the reason can be:
That was quick. You just got into this role for about 6 months.
You weren't fired so unfair dismissal doesn't apply here. You worked with a company as a outside worker so was paid as a seperate pay method than the actual emplyees of the company. The company do have the right to stop you right there and tell you they don't need you anymore and can just tell you to go.
This is like: My business needs someone to come set up a computer network system and maintain it for 6 months. I hire someone, a contractor, to do this for me
Once the system is up and running, there is little need for the contracter to be still on site therefore, my business can tell the contractor, "we are finished, we will handle
it from here. Thank you for your help, will not need any more of your help, you can go."
Since that contractor wasn't hired as a employee, that contractor wasn't entitled to any pay except for the work he have done.
It isn’t like this. They are still hiring for my role. My direct manager is extremely happy with my work and doesn’t want me to go. However the decision has been made by the upper management. They hardly know the quality of my work and won’t give me a reason for my notice.
Are they hiring another contractor or hiring permanent staff?
Upper management probably reviewed their budgets, saw how expensive contractors can be, and decided to terminate the contract. They may fill it with permanent staff or a cheaper contractor.
won’t give me a reason for my notice.
You still don't get it OP.
They don't have to give you a reason, you were contracting to the company.
They decided, rightly or wrongly, to dispense with you. They can hire another person to do the same job if they want to before you've even left the site, it's their right. Upper Management made the decision, not your direct Manager.
You were compensated for this job uncertainly with a larger pay.
Welcome to the real world of contracting.
I'm not sure of the relevance of your previous post. but combining the information from both:
My contact is run by the recruitment agency
They are still hiring for my role. My direct manager is extremely happy with my work and doesn’t want me to go.
Reading between the lines, they are trying to cut out the middle man(recruitment agency). Have you tried applying directly for the role? Or have you essential burnt bridges by pestering them for a reason for letting you go?
You have to be honest with yourself. If you were really valued by the company and they had a budget issue, why not offer you the permanent position. You have been in the role for 6 months, your manager is clear about the high quality of the work done and could have convinced upper management of your value. If im the Exec and my direct report tells me you are good and we have a budget issue, first thing i'll do is offer you a full time role at the new salary.
This is not a decision made by upper management, this is just the excuse your direct manager is using for letting you go. Just think about it….
I did. It was the upper exec, who gave me the notice. My manager wasn’t even aware of it. They came to know after the notice was given to me.
@Cynicaloflife: this sound weird, the person should be giving you notice is your direct line manager or direct boss, upper management can pass the message down
and your direct boss should be handling your termination.
I been in a few budget cuts and my direct boss is very frank, he straight up told me you are safe don't look for another job if there are rumour of cuts
and true to his word, a few contractors got let go but not me.
When there are money or budget issue, most organisation already has a hit list of who should go and who should stay and it usually involves direct line manager making this recommendation as they know who performs and who doesn't
If your boss think you are valuable and you are delivering he should go into bat for you and argue against culling you, no boss want to lose good worker
@Cynicaloflife: If they don't know you then the reason is going to be they've found someone cheaper, or they want to employ a colleagues relative. Get a good reference from your manager. And consider being cheeky and reapplying for it!
'… My direct manager is extremely happy with my work …' . Direct manager usually says that, possibly he/she didn't like something with you.
You're probably a casual employee of whatever recruitment agency you were hired through. They might receive feedback if it is relevant but the hiring company won't tell you anything directly. There's no recourse except to move on.
Don't be hung up on what you did to end your contract. It was a decision made by the company based on cost. It won't look bad on your cv that U left ur old contract, U can just say in the next interview s that the contract ended. Future employers won't delve too much into it. Ive been contracting for short contracts and long ones…. Have never had an issue getting another contract. The money is great for wat it is. U don't have the long term commitment to the job or the company
Maybe they got rid of you because you're the sort of person to go to fair work over a legal contract termination
I can't see the issue here.
The business wound up the contractor. No breach at all.
Am I missing something or is this just sour grapes?
The grapes fermented and OP is pissed
Ahh I thought as much.
Nothing to see here then.
The best you can do is check if you really were an independent contractor or not. If you were called one but that was to get around employment law you would have some comeback but it’s complicated.
Were you a Fixed term, max term or daily contractor? And did you contract through a sub-agency or independently? If you were Fixed term for 12 months, then you can demand the employer for the full contract term.
this is what it means to be a contractor. this is why i wouldnt do it. time to decide if you want to continue it or return to a normal employee role.
you get paid a lot more but you got to save for rainy day like this, I get paid nearly triple my salary a contractor
save 30-40% of that money knocked off the mortgage as a saving measure so if I got sacked for whatever reason
I can redraw the money lives on it while looking for another job.
you have to be smart with these things and not earn more and spend more
its good that you plan ahead. though unfortunately i know a lot of people who aren't responsible. more money usually means more spending.
So sorry for u mate… when ur a contractor these are the risks. same happened to me.
Ur paid more to take this risk when u contract.
Far too many questions here. There are some legal implications if you were a on a fixed term contractor. I'm sure the employer isn't stupid enough to dismiss an employee on a fixed term.
As others have noted, there is a risk in working as a contractor, employment comes and goes (often at times at the discretion of the employer).
I work in IT as a contractor, it always a fix contract (12 months - 24 months etc…) but they always have an exit clause that they can sacked you any time with a couple weeks notice and vice versa I can give them a couple of weeks notice and move on to better paying contract in the middle of the term.
don't know if it's already been covered, but it depends on the state
some states say that if a contractor does a role more than 12 months, they need to be considered for full time …
some recruiters come in and try to undercut the agencies rates …
some managers want to get their nephew a job …
welcome to the joys of contracting, no, you have zero recourse, there's nothing you can do, move onto bigger and better things :)
Yeah its not that simple. The employee can request a conversion but the business doesnt have to agree to it. Especially if its a labour hire / host arrangement
pretty sure its part of national employment standards
It's funny in South Australia, if a full-time employee injured themselves at work they can't sue for negligence but contractors if they do can sue for negligence.
Sorry to hear mate, but you need to read what was in your contract, I don't think anyone can help here unless you give you details about the terms of your employment
Contractor there is no such thing, you can get let go at any time, you get paid double and triple salary to take on these risk
they can give you whatever notice written in the contract and off you go
I was a contractor for about a decade, I always save about 30%-40% of my wage for unexpected sack due economic down turn or funding issues
but it never eventuate so more money for my properties and shares
Everyone has assumed and logically so, that as a contractor he was earning more than he/her equivalent. Maybe he wasn’t, maybe he’s come in way less. Unless OP can confirm, everyone here has just made assumptions. Yes, I know my logic and thinking maybe off, but hey, I’m just putting it out there…..
True and people have assumed that the tests for contractor have been met too whereas OP may have even been a deemed employee regardless of what was stated when engaged, and really terms of contract are relevant too - telling OP there are no options isn't true without all that information - https://www.ozbargain.com.au/comment/11744222/redir
What he earns has no bearing on the question being asked here anyway.
Depends on how far you want to take it. They could be alleging anything, and discrediting your work history.
I would visit a solicitor and have them write the company to explain why you were terminated. And obtain all copies of correspondence, and records.
If you have been unfairly dismissed, with negative feedback recorded, then you take the matter to court.
Perhaps you can ask your recruiter if they can get any feedback from employer.
If you need to change something, likely they would have told you.
Chalk it up to “it was them, not you” and move on.
If it happens again or twice again, that might be the time to start thinking it is you.
Thats the point in contractors.. they cost more, but they can be scaled up and down as necessary.
This post is the equivalent of being a taxi driver and complaining that you aren't making money because your car is empty.
Unfair dismissal is a low percentage win these days even if you were an employee.
Contractors are self employed right? Whatever is in your agreement is basically it. The nature of the game is you are expendable were supposedly compensated for it.
You’re owed nothing. You were paid more than permies because you have no job security. Ask informally, sure, and they might explain the reasoning, but they are under no obligation to do so. Surely when you became a contractor for higher pay, you are aware of this.
Unfair dismissal does not apply to contractors in the same way as it does to permanent staff.
Another assumption he was being paid more than anyone else….
then OP got rock in his head if he is taking a contacting job over permie role for equal or less money
it is a given contracting job for the same role should be paid more than the permie that the nature of contracting,
you compensates for sick leave, holiday, super, short notice termination and risk being unemployed
Completely irrelevant what others are getting. According to their own post history they were getting 50% more than their previous perm role, and with just 2 years experience.
Relative to their own previous perm role it is very clear they were compensated appropriately to be a contractor, and also very clear that they were focused completely on the substantial salary bump, given their categorisation of a 100% routine contract termination as a dismissal, especially an "unfair" one.
Whether s/he is paid more or not is irrelevant anyway, I just mentioned it because s/he is in all probability getting paid more.
Doesn’t matter because s/he is a contractor, and that’s that. Contractors get terminated all the time and they will never have the same rights as a permanent employee. You can’t have your cake and eat it too. You go contract, you get no security. You go full time permanent, you get paid less… generally speaking.
By assumption you mean going by what the OP himself said?
https://www.ozbargain.com.au/node/636456#comment-10704430
Being paid more isn't always the case … i spent nearly 5 years working as a contractor with Telstra …
I was on $18.50 per hour, full time staff were on $49.50 per hour, I was 'promoted' to the more technical team, I also ran training and mentored staff for 6 months and had zero recourse …
They were able to get around it by saying "there's no award for the job telecommunications tester, well, there is, but that's an internal award so it doesn't count, so we're going to pay you as an admin support officer" - there were about 100 agency contractors in the same situation …
side note, the people i was mentoring were from a call center who didn't take a package, so i was training people who were earning ~250% my hourly rate
Wow how come you didn't quit as soon as you realised what the conditions were like?
I once had a contractor work with me earning probably 3x the amount I was but I was teaching them how to do their job for a very long time. They were very experienced and were worth what they were paid, it just wasn't required for the job at hand. So they terminated them when their contract ended. They were given a long heads up about the contract not being renewed, they were unlikely to get hired in a job that pays anywhere near contacting rate etc. The day came when they had to leave and they were so pi**ed off about not getting another contract etc. Took it very personally like their was something wrong with their contract ending because they don't want to pay the money for the job you do, or you completed the project. Just move on.
Geez.. OP is so naive… keep repeating his direct line manager was happy with his job and wanted to keep him on.
How do you even know if this really is the case? Your manager could just be telling you that because it's less awkward to say that than telling you face to face that it was his decision.
Nobody that I've seen get the boot (employee or contractor) ever thinks they were let go on reasonable grounds and they always think their performance was up to scratch when others don't think that way
Yeh you have no rights when it comes to termination.
That's the nature of contracting.
Edit
The only thing you can do is read your contract and make sure they pay you for whatever notice period is stated on it.
Reason for termination - They didn't need you any more
It's not unfair dismissal, you were a contractor. If you don't like it, change your occupation because this is how it is.
There's actually a possible option here. Technically there's no such thing as redundancy as an independent contractor. However, OP could be a deemed employee if they treated OP like an employee and not a contractor. Then entitlements may be possible…
See - https://www.fwc.gov.au/unfair-dismissals-benchbook/coverage/…
In some cases, even though a person has agreed to be an independent contractor, that person may actually be an employee
The parties cannot deem the relationship between themselves to be something it is not. Courts will look to the 'real substance of the relationship in question'.
In simple terms, the issue is whether a person works for an employer or works for themselves.
In Hollis v Vabu Pty Ltd[10] it was held that 'the distinction between an employee and an independent contractor is rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own'
Viewed as a "practical matter":
- is the person performing the work an entrepreneur who owns and operates a business; and,
- in performing the work, is that person working in and for that person's business as a representative of that business and not of the business receiving the work?
'If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.'
To be generally considered an employee, having many of these characteristics helps:
- Employer exercises, or has the right to exercise, control over the manner in which work is performed, the location and the hours of work etc.
- Employee works solely for the employer
- Employer advertises the goods or services of its business.
- Employer provides and maintains significant tools or equipment.
- Employer can determine what work can be delegated or sub-contracted out and to whom.
- Employer has the right to suspend or dismiss the worker.
- Employer provides a uniform or business cards.
- Employer deducts income tax from remuneration paid.
- Employee is paid by periodic wage or salary.
- The work of the employee creates goodwill or saleable assets for the employer’s business.
- The employee does not spend a significant portion of their pay on business expenses
To be generally considered an independent contractor
- Worker controls how work is performed.
- Worker performs work for others, or is genuinely entitled to do so.
- Worker has a separate place of work and or advertises his or her services to the world at large.
- Worker provides and maintains significant tools or equipment.
- Worker can delegate or sub-contract any work to other persons to complete.
- Contract may be terminated for breach.
- Worker wears their own uniform or other clothing of their choice.
- Worker has own business cards.
- Worker responsible for own tax affairs.
- Worker provides invoices after the completion of tasks
- The worker creates goodwill or saleable assets for their own business.
- The worker spends a significant portion of their remuneration on business expenses.
etc
Also see - https://www.fairwork.gov.au/find-help-for/independent-contra…
Contractors get paid anywhere from 2x to 4x normal employee rates for a reason i.e. you would have earned more in 3-6 months than a full time employee did, in a year. Take the money and go on a 6 month vacation. Come back and look for another contract. Simples.
Not necessarily, I know an independent contractor that works for $50 / hr
People in the same position as employees get about $80K + super = $88K for a 38 hour week.
At $50/hr x 48 weeks x 38 hour weeks = $91,200. He has to cater for his own super, insurance, cost of bookwork, phone / computer / other basic supplies, etc - which would consume the extra $3200+ and so doesn't get paid any better at all in effect for the same effort.
The only reason he does it is he gets more work on top of the 38 hours to freelance after hours from others etc and can make more by working more hours in the same 'business'.
Assuming 2x to 4x is an over-estimate when you adjust for other factors.
OP works in IT where average daily contract rates range from 900 to 1000 per day.
Agree, often more.
Depends on the expertise.
I am far from that pay. But working my way up ✌️
Was it a government entity?
I worked for one and many of us were on a contract. It allowed for the entity to expand and contract as funding allowed. If funding returned, sometimes the best ones were rehired.
If there was a funding cut, they would usually find a way to retain the very best people. But good people were frequently let go.
One month you'd be swimming in funding and HR would be hiring faster than they could find desks for people to sit at. The next month you'd be sitting next to 10 empty desks as 50% of the workforce were let go because the government had changed priority.
Right now, alot of these entities are swimming with money and staff due to COVID, but I'm sure that too won't last.
Contractors are the lowest of the low in the pecking order - usually you get higher pay but you have no rights, that is what the higher pay is compensating for. The terms are defined fully in your contract, its pretty likely that you were let go under the terms of your contract and you have no recourse.
The fact that you were wanting to post on ozbargain instead of a) understanding that as a contractor you get paid how you do because you have basically no rights, b) critically reflecting on your own part in this whole shebang, and c) approaching someone who can ACTUALLY do something about it (management, HR, etc), may be somewhat of an indicator as to why you're in this predicament.
Yes it is possible OP annoyed somebody higher up while not realising their precarious position. There was a contractor in a team I was in who was fired because he wanted to work from home, and when told no made up bogus health complaints as to why he had to (and couldn't bring in medical certificates after two weeks of waiting). He was highly skilled but he annoyed the management.
same, a contractor join the team, 2 weeks in he demand to WFH 2 days a week, some permies got to WFH one or two day a week this is pre-pandemic
he was politely escort to the exit door by that Friday
It doesn't take much to be let go when you're contracting.
In my contracting days, I saw one contracted employee being "No longer required" because when they unpacked a box of equipment they threw the polystyrene packaging material on the ground, and the wind blew it everywhere.
He was told not to return again.
If you are a genuine contractor, then you have no protection under the Fair Work Act. Your only rights would be in contract against the "employer".
If you are labelled a contractor, but the true substance of the arrangement is that you are an employee, then you will have protection under the Fair Work Act (although you will need to prove that you are truly an employee).There are strict timeframes for an unfair dismissal claim (21 days).
Given that you are dealing with your livelihood here, and especially as you allude to being offered further contract work in future, you'd be doing yourself a favour by getting some legal advice. Even if the advice is that you have no recourse against the "employer", it may still give you a better understanding of potential issues you may face in future.
If you are in IT(looking at previous posts, looks like you are) then the market is red hot right now. Especially with Perth(WA) borders closed, it's the right time. I'd act fast before situations change. Update LinkedIN and move on.
Happy Birthday for yesterday, JV. I see you are in a pleasant mood as always. Musta been a lovely day…