I was offered the role as National Marketing Manager for an independent NFP charity and we entered into an employment agreement in September. I was due to start today but they terminated the role last Thursday with 2 days notice prior to commencing employment. The contract has a termination paragraph which clearly says :Either party may terminate this agreement at any time giving the other party no less than one month's notice in writing, or, in the case of the Foundation, paying salary in lieu of notice" Q. Does the employer owe me the one month's salary? Q. If I ask for compensation of one month's salary can they make me work in a another capacity after not letting me commence in the role? Q If they dont offer compensation what can I do?
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Does the agreement stipulate when it starts?
I am definitely undercharging in my day to day practice from what you have just told me.
This is the termination clause: The foundation may terminate your employment without prior notice if you:
commit any serious or persistent breach of any of the provisions of this agreement
be guilty of any grave misconduct etc
become bankrupt or make any arrangements or composition with your cresitors
be convicted of any criminal offence etc
either party may terminate this agreement at any time by giving the other party no less than one months notice in writing or in the case of the Foundation paying salary in lieu of notice.
Leon I got the following info from the NSW Business Chamber website IR advice page:
Notice prior to commencing employment
Where an employer engages an employee under a contract of employment but decides to terminate the contract before the employee commences work with the employer, the employee is entitled to the required period of notice under the National Employment Standard (NES) (one week), or the applicable industrial instrument or contract of employment, if a greater period of notice is specified. Where the employee is directed by the employer not to commence work under the contract of employment, the employee would be entitled to payment in lieu of notice.
It should be noted that an employee terminated prior to the commencement of their employment with the employer may claim unlawful dismissal if the grounds for terminating the employment contract were discriminatory.
The termination paragraph has two sections- the first has reasons the Foundation may terminate without prior notice if you commit any serious breech of any provisions of the agreement, guilty of grave misconduct etc, become bankrupt etc, be convicted of any criminal offence etc,
Then it has the second section:
"Either party may terminate this agreement at any time be giving the other party no less than one months notice in writing, or in the case of the foundation paying salary in lieu of notice.
There is an acceptance of offer para - to accept please sign and date and return which I did in September. ALso that the agreement may only be varied in writing.
Earlier research I found is below:
Termination prior to commencing employment
As soon as the person has accepted an offer of employment from the employer, a contract of employment exists, the contract’s existence is not dependent on the person commencing work with the company on the agreed date.
Where the employee is directed by the employer not to commence work under the contract of employment, the employee would be entitled to payment in lieu of notice.
The amount in lieu is to be paid to the employee, at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
‘Full rate of pay’ is defined in s18 of the Fair Work Act to include the following:
Under the National Employment Standards, an employer is required to make payments equivalent to the Superannuation Guarantee (SG), which was otherwise the case under the Workplace Relations Act. The employer is required to make SG contributions calculated on any payment in lieu of notice (see SGR 2009/2).
Where a contract of employment requires a month’s notice of termination by either party, a ‘month’ is defined as meaning the corresponding date of the following month. A month does not mean four weeks unless otherwise specified by the applicable industrial instrument, statute or contract of employment.
Thanks very much, that's what I thought. What is your suggestion for the best way forward now for me to get this money.
They have offered for me to work for it, spread over 8 weeks. But as this is not the same role, do I need to legally do this? Or do they still owe me for that contract?
WIll i need to see an employment lawyer or would a general business lawyer who understands contracts be able to do this?
WHat is your advice on if I have to work out the pay over the 8 weeks?
Thanks very much.
They called me today and asked if I would work for them for 8 weeks part time and they would be able to give me the equivalent of one months salary under the original agreement.
I don't think this is fair - is it legal?
Great it is what I think- I'm feeling better now. The way we left it was that they would seek legal advice and get back to me.
I'm concerned they wont get back to me.
Do you think I should wait for this or act promptly and send in a letter of demand?
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One last final question- from your experience should I be sending in the letter of demand first or waiting for them to get back to me?
really appreciate your advice and have been impressed with the service.
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