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John Melis
John Melis,
Category: Australia Law
Satisfied Customers: 571
Experience:  Principal Lawyer at Legal AU Pty Ltd
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I currently have a contract with a company which is suppose

Customer Question

Hi there, I currently have a contract with a company which is suppose to end in March 2018. They have just sent me an email outlining that they are terminating my contract on the 1st of October as they are preparing to sell the department that I manager as an ongoing concern. They say they legally obliged to terminate my contract before they can sell department. I believe they are terminating so as to make the department look more profitable than it is - they will remove me and replace me with a current employee who is already being paid by the company. Can they terminate early because of the impending sale? Thanks. Rosemary
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Yes, South Australia
JA: Is the employment agreement "at will," union, full time or part time?
Customer: Part time
JA: Anything else you want the lawyer to know before I connect you?
Customer: No I think this is everything. However, I've just been called into another meeting, so will have to come back to this later. Will I need to re-enter the details or do you keep this on file?
Submitted: 1 month ago.
Category: Australia Law
Expert:  John Melis replied 1 month ago.

Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly.

Kind regards
John Melis

Expert:  John Melis replied 1 month ago.

Dear customer, in relation to your important matter, the terms of the termination of your employment are subject to the employment agreement.

I would be pleased to review the contract of employment and advise you on the specifics on that agreement.

Otherwise, generally, unlawful termination is prohibited by Section 772 of the FW Act which prohibits the termination of an employee’s employment for one or more of the following reasons relating to the employee:

temporary absence from work due to illness or injury (s 772(1)(a)), within the meaning of reg 6.04 of the Fair Work Regulations 2009 (Cth) (FW Regulations);

  • trade union membership or participation in trade union activities outside of working hours or, with the employer’s consent, during working hours: s 772(1)(b);
  • non-membership of a trade union: s 772(1)(c);
  • seeking office as, or acting in the capacity of, a representative of employees: s 772(1)(d);
  • the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities: s 772(1)(e);
  • race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (see Introduction to equal employment opportunity/anti-discrimination laws): s 772(1)(f)
  • absence from work during maternity leave or other parental leave (see Parental leave): s 772(1)(g); or
  • temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances: s 772(1)(h).

While the FW Act mostly only applies to national system employers and employees, the unlawful termination provisions apply to all employers and employees in Australia. This is because the provisions give effect to ILO Convention (No 158) concerning Termination of Employment at the Initiative of the Employer, and are supported by the external affairs power in the Australian Constitution. See Coverage of the federal system.

In practice, however, unlawful termination applications are likely to be made mainly by non-national system employees. This is in large part due to s 723 of the FW Act, which provides that a person may not apply for relief in respect of unlawful termination if they are entitled to make a general protections court application in relation to the conduct in question under Pt 3-1 of the FW Act.

An unlawful termination claim is also prohibited where the applicant has made an unfair dismissal application that has not been withdrawn or failed for want of jurisdiction or because the FWC was satisfied that the dismissal was a case of genuine redundancy; s 725, Fair Work Act 2009 (Cth)

There are many aspects to termination of an employment agreement, and if you would like to discuss this matter further by telephone, I welcome you to request those services.

If you have any further questions, I would be pleased to answer those for you.

Kind regards
John Melis

Customer: replied 1 month ago.
Thank you for this, however, does this apply to me when I am under contract and not 'employed' by the organisation? To outline further - I am a personal trainer, contracted to a gym and paying rent per week to operate there. From March I not only pay rent to operate as a personal trainer but also am contracted to act as the personal trainer manager, which means look after all of the personal trainers on a part-time 25 hours per week basis. The owner of the gym has now decided to 'sell' the personal training arm of the business and has told me that legally he needs to terminate my contract before he can sell the 'business'. However, I am dubious about why he is wanting to do this, given that he has recently told me that he wanted to place a permanent staff member into the position of personal trainer manager and null and void my contract. I asked him to pay out my contract so then retracted and said that I could continue on part-time. Now, he is telling me that he legally needs to end my contract so that he can 'sell' the PT arm of the business. So not only am I wondering if he can terminate my contract just because he want's to 'sell' the PT arm, but secondly as a personal trainer, can he actually sell our contracts to a third party. I would have thought that once he tries to sell our contracts, we are then 'out of contract' with the original gym and no longer bound to the new 3rd party and thus we could leave the premises without repercussions. Am I incorrect? There are 14 other personal trainers currently in this positions and they are all asking the same question. I'm in a different position because I also have a contract directly with the gym as the PT manager and the owner seems too keen to end it and I don't think he is in a legal position to end it. I've told him that I don't want to end the PT manager's contract until the entity has been sold and then I understand that my contract directly with the gym will end and then I can discuss my position further with the new owners. He has said that he needs to end the contract now and then he will re-instate me on a week by week basis, but his recent correspondence does not reiterate this deal, which means, come 1 October, I lose my contract and he will place his employee in the role. I'm very confused about my rights, but know that this cannot be correct, given my initial contract is until March 2018.
Expert:  John Melis replied 1 month ago.

Dear customer, your arrangement may be one of a business relationship than that of employer and employee. Meaning contractor. It would be necessary to review the agreement you have signed to determine exactly what the relation is and how your rights would then apply under that agreement.

There are various cases similar to yours where Part A has been engaged by Party B and it is one of contractor, and where that party has had the contract terminated unlawfully, it then becomes one of breach of contract where damages may be claimed.

I will welcome you select phone services so we may discuss in further detail.

Alternatively if you have any further questions, I would be pleased to answer those for you.

Kind regards
John Melis

Customer: replied 1 month ago.
Would it be possible to discuss tomorrow? given the lateness of the day? I could then scan and send the document in the morning and call. Thanks
Expert:  John Melis replied 1 month ago.

Dear customer, you are most welcome to contact me tomorrow to discuss.

I have made an offer for you to have a quick call by telephone if this helps you too,

Kind regards
John Melis

Customer: replied 1 month ago.
Thank you for your time. Another personal trainer has engaged a local solicitor and has asked me to attend with them, therefore I will not require any further assistance at this stage.
Expert:  John Melis replied 1 month ago.

Dear customer, thank you for the update.

If you need any further assistance in the future please do not hesitate to contact me.

Kind regards *****