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Maurice
Maurice, Lawyer
Category: Australia Law
Satisfied Customers: 2764
Experience:  Lawyer (Juris Doctor, MBA IntBus) with 25 years Australian Business Experience at Your Service
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My husband is a greenkeeper and was employed on contract for

Resolved Question:

My husband is a greenkeeper and was employed on contract for an agreed period of 2 years (verbally - no employment contract was ever signed)- the two years has not expired and he has been terminated - can his employer do this or do they have to pay him out to the expiration of his contract - they have already advertised his job
Submitted: 5 years ago.
Category: Australia Law
Expert:  Maurice replied 5 years ago.
HelloCustomerbr />
Was there a reason behind the termination, and how long until the two years expires?

I will assist where I can
Customer: replied 5 years ago.
no reason given just a letter stating that they no longer require his services issued to him the day before his job was advertised in the newspaper - contract not due to expire until oct 09
Expert:  Maurice replied 5 years ago.
OK, final query - what state are you in and was he "employed" or a contractor?
Customer: replied 5 years ago.

wa and he is not employed - he pays his own tax and invoices the club for his labour - they do not pay super or any leave entitlements.

 

We have already been through this with the club last year - they told him that they would put him on full time wages (because he was working full time for wages at another club and contracting to this club). He quit the full time job and then they refused to put him on wages saying that the original terms of employment were for a contracted period of two years.

Expert:  Maurice replied 5 years ago.
Ok, that clears it up for me, I am also Perth based for your interest.

If your husband was working exclusively for this club, under the direction of the club, whereby he could not pick and choose his own hours and do work for other people than for all intensive purposes he would be an "employee" and can not be dismissed for no reason as the "employer" would leave themselves open for an unfair dismissal claim.

If the employer wants to insist that your husband was a contractor, so be it, you rely upon the letter the club sent to your husband stating it was a two year contract and as no formal agreement exists which may document termination proceedings, your claim would be for the balance of the contract.

Problem though is to chase the "contract" value you will need to this privately through the courts if they do not pay you - as an employee, you can draw upon the resources of the Work Place Ombudsman (ww.wo.gov.au) which I what I would suggest you do in the first instance to ensure that your husband can either see out the balance of his contract or be paid out.

I trust this information is of assistance and that you will kindly accept my answer as I wish you and your husband the best in this matter

Regards

Maurice
Customer: replied 5 years ago.
my husband just informed me that the club did draw up an employment contract many months after he commenced - however he has never sighted or signed this contract so is unaware of its contents - does this matter?
Expert:  Maurice replied 5 years ago.
Not really, even if there was a termination notice of say 2 or 4 weeks in that contract, without either party signing the agreement there is no agreement. All you can rely upon is the 2 year contract letter.

Even if the contract is brought in, your husband has been invoicing as a contractor.

The club is stuck between 2 poor choices - an employee they must give reason for termination to avoid unfair dismissal claim OR a contractor that they must honour a 2 year agreement to pay out.

I trust this clarifies the question and that you will respectfully XXXXX XXXXX answer

Regards

Maurice
Maurice, Lawyer
Category: Australia Law
Satisfied Customers: 2764
Experience: Lawyer (Juris Doctor, MBA IntBus) with 25 years Australian Business Experience at Your Service
Maurice and 2 other Australia Law Specialists are ready to help you
Customer: replied 5 years ago.
Hi Maurice we had no luck with the wo ombudsman as suggested - can you suggest further follow up action? my husband had a meeting with the President of the Bowling Club today and the committee that has sacked him really have no idea what they are doing - if we want to make a claim against the bowling club for the balance of the contract that they owe my husband after they have dismissed him unfairly and 6 months early - what are the steps to do this? We spent hrs on the phone today with the Workplace ombudsman, State and Federal Industrial Relations Committee as well as the Contractors Advice line and we are none the wiser.
Expert:  Maurice replied 5 years ago.
HelloCustomerbr />
That comes as somewhat as a surprise to me, probably a little complex for them to understand the full extent of the relationship between the parties and it does not fit neatly into the employee / employer box to deal with.

The next step I would suggest is to see a lawyer who will make a formal demand on your behalf to recover the balance owed under the contract.

Do you have access to one that you have used in the past? If not I will refer you to one if need be

Customer: replied 5 years ago.

is this information that we give you confidential? we have no money to pay a lawyer and we have been told to ring the law advice centre tomorrow? will this help?

 

Expert:  Maurice replied 5 years ago.
HelloCustomerbr />
Your question is in full view of experts on the site, the answers are not public unless they are paid for but in any event your name, employer has not been disclosed here so for all intensive purposes this could all be a hypothetical discussion we are having, but in reality, your confidentiality is not being compromised with the information provided to date.

I'm not sure if the law advice or legal aid centre will be able to assist this commercial matter, if the value of the remaining 6 months is a substantial sum of money - and your husband can not replace that income, as expensive as lawyers may be sometimes it might just pay for a lawyer to send a letter of demand that may prompt the club to react and settle the matter before legal costs get out of hand for both sides.

Its your call of course as to whether to pursue it or let it go.

I trust this clarifies the question for you
Customer: replied 5 years ago.

the reason that i ask about the confidentiallity is becuase our situation is made so much worse by another legal matter we are currently dealing with

 

one year ago my husbands brother murdered his parents and we are currently awaiting this to go to trial. my husband has no other family as he lost them two months prior to his parent murder. his brother has a very high profile perth lawyer. the wilful murder of my husbands parents has all but destroyed us in the last 12 months and with him loosing his job we have no income - having to take this matter to a lawyer is just another stress we dont need - the sum we are talking about is approx june - oct at $850 per week.

 

 

Expert:  Maurice replied 5 years ago.
I understand, and I am so sorry to hear about the external circumstances, life presents us with so many challenges to deal with and we all have a story to tell.

The matter of the trial and this matter of employment are quiet different and distinct from each other, $850 week x 6 months is running close to $20,000, a lot of money, but I would ask, do you honestly believe your husband will be out of work for the next 6 months? and if the answer is no, how much of that $20,000 could he earn in the next 6 months?

Yes, its a best guess, but whatever that guess is will determine what the final loss is - and whether you wish to pursue the club for that final loss is what you have to weigh up in the end.

I don't know if there is much more I can offer to you in regards XXXXX XXXXX matter, as mentioned, its a personal decision to take to pursue the balance of the contract value owed to your husband.
Customer: replied 5 years ago.

i am confused - if he is owed $20,000 in loss of contract for the next six months because they cut him short - they are not liable for this if he gets work becuase he has not lost earnings? Is this correct

 

the reason I made mention of our circumstances in regards XXXXX XXXXX husbands parents is not because I was comparing the two different legal matters - I was just trying to show you and work out if in the general scheme of things we won't really have much hope with this particular matter - we wont bother.

 

It would be greatly appreciated if you could give us the contact details of a lawyer in Perth that may be able to help us resolve this matter in regards XXXXX XXXXX husbands employment

Expert:  Maurice replied 5 years ago.
On the limited loss - yes, its what is called a mitigation (or reduction) of a loss - so your husband has got to do the best he can to reduce the loss, its very similar to if a tenant broke a lease on a rental property, the landlord has to find a tenant as soon as possible to limit the loss for both parties - the landlord could not find a new tenant AND charge the old tenant for the balance of the lease term - I hope that makes sense

As for the two different legal matters - you do have hope in the financial matter with the club, do bother!

Perth Lawyers - If you have not done so already contact the Law Society of WA on the link below - they do have access to low cost and sometimes free services with Lawyers offering their time, you need to persist to get the result you need
.

http://www.lawsocietywa.asn.au/index.php?p=7

.
I wish you and your Husband the best in this matter


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