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Do you answer questions regarding performance issues at

Do you answer...

Do you answer questions regarding performance issues at employment in Government?

Lawyer's Assistant: Was this discussed with a manager or HR? Or with a lawyer?

There was discusssion occurred with Manager and HR. not lawyer

Lawyer's Assistant: Is the workplace "at will" or union? Is the job hourly or salaried?

I am employed full time at a government department in SA.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I am not satisfied with my HR unnecessarily formalising my performance issues and jumping into conclusion based on incorrect information and putting me performance implementation plan. I felt like my current A/supervisor and HR are manipulating things and could not recognise my preformances progress accurately. A/supervisor appears to be blindly carry forwarding the inaccurate assessments of previous supervisor which both of them have serious conflict of interests. i have requested this numerous times with my previoius supervisor who was also not a good supervisor. I felt like I have been scapegoated and a victim of bad practices at workplace. I have been working in this department for the last 8 and half years. I preferred to remain in the currerent position but recently i have expressed some interest to progress into senior. The supervisors have the habit of comparing an experiences and new workers. I understand there are expectations. At the end of the day, we can only do what we can do within the limited power and timeframe. Just want to protect myself from unnecessary threats and job safety.

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Customer reply replied 4 months ago
I have letters from my employer which I do not have scanned copies.
Answered in 12 minutes by:
4/6/2018
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,568
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified
Hi, my name is***** solicitor in Melbourne. Thank you for using Just Answer, and I will answer your question today and ask various questions to narrow the issues in your post raised.
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Customer reply replied 4 months ago
Thanks John.

From the description you have provided there is workplace bullying occurring to you. Part6-4B of the Fair Work Act 2009 (Cth) (FW Act) empowers the Fair Work Commission (FWC) to make orders to stop workplace bullying. Bullying at work occurs where a worker is subjected to repeated unreasonable behaviour by an individual or group of individuals that creates a risk to health and safety: s 789FD(1). The definition of bullying does not include reasonable management action carried out in reasonable manner: s 789FD(2).

Bullying may involve a wide range of behaviour including harassment, victimisation and racial vilification; abusive, insulting, or offensive language or comments; unjustified criticism or complaints; withholding information that is vital for effective work performance; setting unreasonable timelines or constantly changing deadlines; setting tasks that are unreasonably below or beyond a person's skill level; denying access to information, supervision, consultation or resources to the detriment of the worker; spreading misinformation or malicious rumours; changing work arrangements, such as roster and leave, to deliberately inconvenience a particular worker or workers.

An application for stop bullying orders may be made by you under the Fair Work Act.

The Fair Work has discretion to deal with an application as it considers appropriate, including by mediation, conference or hearing. The applicant and alleged bully, as well as the principal(s) or employer(s) of the applicant and alleged bully will be given an opportunity to be heard and put forward their case.

If you have not done so you may also consider mediation with the employer as well. However, sometimes this is understandably difficult.

The employer has a duty to provide a safe place of work. This extends to providing an environment that is free from bullying.

The moment your file the claim art Fair Work you should also inform your employer on the same. The reason for this approach is once you inform the employer and if they terminate your employment you will be able to argue the position of unfair dismissal. Keep in mind you are are terminated there is a strict time limit to apply under the Fair Work Act that must be complied with when filing the application with Fair Work.

Compensation for bullying conduct may apply under anti-discrimination statutes if the relevant discrimination occurs as part of the bullying; compensation payments for psychological injury; compensation under breach of contract; tort against individual employees for intentional harm; vicarious liability of the employer for the wrongful conduct of an employee.

Example of some orders that are made by Fair Work Commission include: that parties to workplace conduct should not contact each other, should not comment on clothes or appearance, should be rostered onto different shifts so that they do not need to deal with each other, should not exchange any correspondence by email but should negotiate all work issues through their supervisor, the employer pay for counselling for the victim of bullying.

The main point is that you have a legal right to be protected and the law will come to your aid.

If you need any further information please let me know.

You can come back to this post any time to ask questions and there will be no further charges to you.

Don’t forget to rate me 5 stars as this supports me helping the community, and your important questions.

Have I answered your question today ?

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Customer reply replied 4 months ago
Hi John,
Thanks for this response. I have to agree that I have been bullied by Manager, supervisors, past senior and even the workers. I do not want to take up these issues with them at this stage, as it would not get me anywhere.
Were you suggesting me to contact Fair Work to resolve this issue and protect my Job. The HR will be organising a formal meeting at some stage to provide a copy of 3 months performance implementation plan(PIP). Can I take a lawyer as a support person. I haven't been taking any support person into these meetings as I thought I could manage it myself. I did not even take a Union representative which I am an Union member also. I did not want to involve Union which I thought they have some level of diplomacy stands between the executives and employees. Union have their own limitations to involve. I can still participate in performance improvement activities such as attending performance meetings with an able supervisor but I do not agree with formalising performance and putting my job into risk. HR also indicated that if the performance is not achieved in 3 months time, they will further pursue performance management plan. I would be really disappointed if they demote me. I have been tolerating job threats from my previous supervisor who has been most unethical and authoritarian supervisor I have ever had in my career. This supervisor actually started this process in January 2015. How can i stop management from formalising PIP? Or if the management still goes ahead with the decision to put me for 3 months performance implementation plan. What all things should I do to legally protect my job? Can I negotiate this plan to be set up in way that assures my success rather than setting me up to fail. I want to progress into a senior position at the same time protect my current position as social worker in the department. If I could not succeed in performance plan, what are my rights to protect my position? At the end I want to work with authorities who is supportive of my career plans.

From what you are describing it seems one side weighted in favour of the employer. I get the indication from your comments that the employe us using the system to possibly eliminate your role.

You can take a support person to the meeting, whether it is lawyer this will be subject to your employment contract.

I consider one of the mains aspects that you need to have addressed clearly is for the employer to detail in writing to you the issues that are referring too. Then from this you are able to address back the relevant matters in writing.

I also consider that you should bring Fair Work into the situation to protect yourself. Once the employer knows that Fair Work is involved the employer will take extra precautionary measures in handling your situation, which is what you want.

Where you want to maintain your employment with this department, you will need to use the weight from available resources to counter act what the employer is doing, which may be arguably setting you up to fail in the role, which will give he employer grounds to terminate you on performance issues.

You can succeed in this matter by carefully positioning the actions you take, especially putting the employer on notice.

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Customer reply replied 4 months ago
Thanks John,
Could you please clarify more about weight from available resources and putting the employer on notice? How can I do this? I am happy to contact Fair Work Commission in this matter. Are they effective in resolving these issues? How do I apply for stop bullying orders?

The key actions you need to consider:

[1] ask the employer to address there issues in writing.

[2] These issues will technically be allegations of performance matters.

[3] You then need to address each allegation back in writing, but taking into account the matters under the Fair Work Act.

[4] This reply should be issued to the employer before any further meetings.

[5] You should have your employment contract reviewed by a lawyer to determine how you fan use he provisions in the contract to protect your rights of employment.

[6] You need to consider the policy and procedures that they department has in relation to the type of work you do.

[7] The policy and procedures most likely will form part of your employment contract on a extended aspect.

[8] You should file a claim under the Fair Work Act for bullying.

[9] Once you have made your application to the Fair Work Ombudsman, you then need to place the employer on notice that you have made such claim.

[10] If the employer then attempts to terminate your position you will have strong gourds to raise a claim in addition to your current circumstance for compensatory damages.

[11] If you are experiencing any form of stress you should see a medical practitioner, psychologist, and have the matter detailed in relation to bullying as this will support the claim at a later time for the bullying actions by the employer.

There are numerous actions that you may take in preparation in to protect your legal rights. However, which ever is chosen needs to be tailored to your specific situation.

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Customer reply replied 4 months ago
Hi John,I have just responded to each sections briefly. Please see below
[1] ask the employer to address there issues in writing.
My Supervisors have been providing the issues in writing.
[2] These issues will technically be allegations of performance matters.
I do not have scanned copies of these letters. Would you want me to forward these scanned copies of these letters. I have received 4 letters so far since January 2018.
[3] You then need to address each allegation back in writing, but taking into account the matters under the Fair Work Act.
I have been defending the issues verbally but I haven’t been responding in writing. So, do you mean when I reply I should refer to the Fair Work Act. Is that right?
[4] This reply should be issued to the employer before any further meetings.
Would the lawyers help in drafting these letters? Or provide some advises on how to issue these letters.
[5] You should have your employment contract reviewed by a lawyer to determine how you fan use he provisions in the contract to protect your rights of employment.
I have been employed on an ongoing permanent capacity as a social worker in September in 2008. But Public Sector Employment rules and regulations have changed and been amended periodically. I am not an expert to articulate this changes in a letter and issue it to employer. How do I do this?
[6] You need to consider the policy and procedures that they department has in relation to the type of work you do.
I am employed as a social worker at Department for Child Protection. This was recently been made into a separate department in November 2016. Earlier it was known at Families SA and a part of Department for Child Education and Development. I always struggled to update the policy and procedures in relation to change in policy and procedures.
I am currently in a team where I am undertaking investigation of child protection matters. This is more front line job.

In relation to your replies, the key element you need to maintain our position of employment is to have a specific strategy to deal with the employer. Every person’s case is different on how the matter should be handled. The main points are the allegations must be defended promptly in writing; Fair Work needs to be brought into the situation; and as a resort, consideration or proceedings in the Federal Circuit Court. If you like we can talk on the phone if it makes it easier for you.

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Customer reply replied 4 months ago
Hi John,
I am comfortable doing this way and then I can read thoroughly and respond accordingly. Is that ok with you?
I would like to defend promptly in writing.
I will bring Fair Work Australia into the situation which I will call them on Monday.I am unsure about Federal Circuit Court, can you please elaborate on that in terms of considering and proceedings with them.

Raising proceedings in the FCC will be subject to potential claims of breaches under the Fair Work Act, your employment contract, and the compensation you seek.

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Customer reply replied 4 months ago
first point of contact is to talk to Fair Work Australia. Isn't it?

I recommend that the first step is to have the allegations that have been raised in writing by the employer reviewed by a lawyer and the responses also that you have extended back. Then following that a clear direction can be put into place how to file the facts with Fair Work.

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Customer reply replied 4 months ago
can I forward scanned copies of these letters from employer to you?

you are welcome to upload the letters on the forum. Please not the forum is public.

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Customer reply replied 4 months ago
This means every legal consultation occuring on this forum is being accessed by others. Is that right?

Yes that is correct. This is public forum. If you would like to discuss in detail your circumstance I invite you to select telephone services if that assist you more appropriately.

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Customer reply replied 4 months ago
Is the cost involved for telephone service is monthly or one off $85? I know that I should have asked question to an administrator?
Customer reply replied 4 months ago
How can i protect the privacy of my information on this forum for now and into the future?

at the moment non of your personal details are displayed from what I can see.

I have extended a special offer to talk on the phone if you prefer.

John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,568
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified
John Melis and 87 other Australia Law Specialists are ready to help you
Ask your own question now
Customer reply replied 4 months ago
would you call now?
Customer reply replied 4 months ago
I have 2 phone calls available. When is the best time to talk.

you welcome to call in the afternoon

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Customer reply replied 4 months ago
I tried to call you.

I am available to take your call, both numbers are working,

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