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unfair dismissal. I was working as Australia Post Mail…

unfair dismissal. I was working...

unfair dismissal.

I was working as Australia Post Mail sub contractor. I got sacked while I was sick. The system follows as Australia Post dealing with Principal contractor and then principal have drivers as sub contractor. Principal has its own private limited company. Australia Post pays principal and then principal pays to sub contractor with invoice. On a Saturday morning I had an infection on foot and was unable to walk. Doctors recommended total bed rest for 2 days. Rang my contractor on sunday but he insisted to come and do the half work. I went for work on monday but I left in about 2 hours time as my foot got severe pain and it got worse. Rang my contractor who did the parcels and told me resume work anyhow on Wednesday. I visited doctor again on Tuesday who then advised your foot is even worse now because of monday work and now I need 3 days rest.. I advised contractor that I'll resume work on following monday who then informed me that he got a new driver and i'm sacked.

I been researching on unfair dismissal for contractors but it seems that independent sub contractors cant challenge however if your duties deemed as employee than I could claim.

Anyone kindly confirm this and know of any good lawyer in NSW.

Thank you,

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Ask Your Own Australia Law Question

Answered in 1 hour by:

3/4/2013

Solicitor: Leon, Solicitor replied 10 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,730

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

Verified

Good Evening

You say you are a subcontractor. Do you have your own vehicle?

Do you only work for the main contractor? Does he withhold your tax?

I need you to tell me about how the working relationship works.

Customer reply replied 10 years ago

yes im a sub contractor and I own my own van. I'm responsible for all maintenance and fuel expenses too. I'm working for Main contractor and not directly related to Australia Post. I work on ABN and he doesn't withhold tax. He pays GST only if im registered for it.

Thanks,

Solicitor: Leon, Solicitor replied 10 years ago

Good Morning

It may be that you are really an employee and that the contract is a sham. If you only work for this one person and noone else and he controls what you do and gives you the work you may be an employee.

If not then you have no claim apart form breach of contract. You need to look at the contract you have and see what it says under termination. If it says that either party can terminate at any time without notice you may have a problem if you are found to be a contractor.

If it is found that you are an employee, then you have a claim from fair dismissal.

I cannot tell you much more, unless I see the contract and spend time with you and is not what this service is about.

I am unable to take on cases from here but I can advise you to contact the Law Society of New South Wales and get a referral to a solicitor the practices in employment law.

Their website is as follows:

http://www.lawsociety.com.au

There are many cases where it has been found that the contract is a sham and the courts have awarded unfit dismissal compensation to the employee and also had their annual leave and any sick leave paid to them.

If you are not an employee and the contract does not allow termination without cause, then you can sue for breach of contract.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Customer reply replied 10 years ago

G'day

Thanks for your kind help. He never gave us a copy of contract and we are just on verbal agreement. All I know is either party can terminate giving 2 weeks notice. In my case he didn't gave me such notice. Apart from this I do not get any sick or annual paid leaves and super which normally an employee have. I can certainly confirm that he controls all subies as any complaints or deliver issues Australia Post forward it to Principal contractor who then speaks to subies.

I'll contact the law society of NSW.

Thanks again fro your help.

Solicitor: Leon, Solicitor replied 10 years ago

Good Morning,

By not giving your contract, they will have difficulty proving that you are contractor irrespective of the fact that she gave them tax invoices.

If you must be given 2 weeks notice cannot terminate you on the spot he must pay you out for 2 weeks.

Contact a solicitor and get them to give you more detailed advice but I believe you are entitled to compensation.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,730

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

Verified

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