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How to deal with threats of [unfair] dismissal at work?

BimboGeek 12 July 2010 26

Urgently need some advice!

The background: I have worked for a not for profit organisation for a number of years. They only employ me part time, so when my second employer closed down and due to some other financial issues, the work I do for this student organisation is only enough to either pay my living expenses OR my debt repayments, not both. To make matters worse, I broke my hand earlier this year, and the medical profession in Canberra only noticed and treated one out of my two fractures, splinted me incorrectly, causing further injury… Long story short, I wanted to go to a city that has a hand clinic so my injury could be treated properly.

So earlier this year I got permission from the president and committee at my work to work remotely from another city, where I can live for free with family until my debts are repaid and I can afford to rent again. Working remotely does not affect me performing my duties because I’m basically a computer nerd who in the years of working for the organisation never gets seen by anyone anyway, except at social events, which I help organise, and hence we agreed that I would return to Canberra monthly to help run the events.

After a new AGM our new President started his term with a normal staff review. So this new Prez, whom I have never met, called me up on Monday out of the blue. He told me the new committee (only 3 of whom I have met) has done a staff review and decided that they want to have social events coming out of their ears this semester. Much more frequently than once a month. So they no longer like my remote working arrangement and want me based in Canberra. I said that would be great for me as well, however I would really need more hours to be able to do that. He very politely told me that this is not going to happen, and that he is going to be “extremely generous” (he described himself thusly 4 times in our 10 minute conversation) and give me until the end of the month to move back to Canberra. He was also “extremely generous” to give me until Friday to provide him a written response stating that I will be back in Canberra by the end of the month.

There was no conversation, no negotiation, no discussion, no listening to what I had to say. He said he will call me on Friday to see “what I had to say”.

So Friday I got a notification on my mobile phone after 10pm that I had a missed call. I’m in a very unstable reception area here, so this does happen from time to time. This morning I received an email from him “directing” me to resume employment in Canberra and stating that my telecommuting has not been effective (first I’ve ever heard of this, since he originally said he wanted me onsite to help with additional events). He says that my employment will be terminated if I do not comply and that I am required to confirm in writing by the end of the week whether I will be returning to Canberra.

Isn’t there some laws governing how employees may be fired?


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26 Responses to How to deal with threats of [unfair] dismissal at work?
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nhand42 nhand42 5:14 pm 13 Jul 10

BimboGeek said :

To nhand42 – I was on site for several years and 90% of all communication occurred over email.

Then for several years the employer wasn’t getting value for money. The new president is justified in expecting a minimum level of onsite attendance from employees. E-mail is a lousy form of communication. You are perhaps an introvert; IT needs fewer introverts.

Furry Jesus Furry Jesus 3:36 pm 13 Jul 10

I suspect that a number of contributors to this discussion don’t work in not-for-profits – HR division?!. If you have such close contact with the president in relation to your work, that suggests to me a small organisation with a flat structure, and a management committee which has a lot of hands-on responsibility (urk! warning bells are ringing!! Unqualified and inexperienced people with power and not enough organisational checks or accountability)

If this 80-20 split of your work has been going on for a substantial amount of time, then it should be regarded as your ongoing work arrangements. If there is a concern about the telecommuting not working, this should have been managed by some performance management sessions (like supervision, but a bit more of the sharp end of the stick). Whatever the story, if you’re threatended with losing your job when there has been no history of opportunities to discuss and address concerns held by management, that’s in your favour. Your employer should have to show that reasonable steps were taken to get you to address their concerns to mount a successful defence aginst wrongful dismissal on this point.

as to having the right to demand that you move to Canberra, if this is because of these extra social events that will be happening so often that you need to be locally based to help with them, that is a diffculty for your case, but I tend to agree with those above that you should have been given more time to organise your affairs. The employer should have to be able to give some proof of substantial adverse effect on the NFP’s activities if you couldn’t move within the time frame required to justify dismissal.

The final questions – what award or workplace agreement covers your work and do you belong to a union? If you don’t know the answer to the first and it’s no to the second, learn a very important lesson from this. When you’re battling for fair treatment against a bad employer, it’s hard enough even when you have a union and an award behind you. When you’re on your own, you’re on your own. Don’t make the same mistake when you get your next job – but remember the old saying: walk softly, but carry a big stick.

housebound housebound 12:27 pm 13 Jul 10

That’s called the ‘nothing to lose’ approach.

BimboGeek BimboGeek 10:19 am 13 Jul 10

NoAddedMSG said :

Ergh, and of course, the person you are having issues with will have read this, and will know it is about them. Do you think that will have helped the situation?

I don’t know. I was very distressed and really needed to get some advice cause legal aid will take a few days to get back to me. Feeling a lot calmer now, and maybe this was a bad idea on reflection, but either way I haven’t said anything here that is not true so I don’t think it will hurt the situation.

BimboGeek BimboGeek 10:12 am 13 Jul 10

harvyk1 said :

Hi BimboGeek

80% is not the complete job, as someone who has employeed people in the past, an employer needs 100% of the job done, and I myself have let people go who didn’t do the full job.

hence i travel to canberra once a month for the other 20%…

harvyk1 harvyk1 10:00 am 13 Jul 10

Hi BimboGeek

Just to pick up on a point you made

BimboGeek said :

Yes, the remote arrangement made with previous prez is in writing (email), but it is not in my contract. I can and do currently perform at least 80% of my job remotely.

80% is not the complete job, as someone who has employeed people in the past, an employer needs 100% of the job done, and I myself have let people go who didn’t do the full job.

In any case don’t send them anything until you have received a response from legal aid, if they press you simply state that you are receiving legal advice on your position, but leave it at that. They can not fire you for receiving legal advise (then you really would have an unfair dismissal claim).

Unfortuantely if you where to follow sepi’s advice and say to them “Send them an email stating that you are working on moving your life back to canberra to resume your employment with them, but that you will need a longer time period to arrange that,” that can then state that they have an agreement that you would move back, so if you don’t then they would have a right to terminate your employment.

Affirmative Action Man Affirmative Action Man 9:42 am 13 Jul 10

From a moral (not legal) perspective I think it is quite reasonable for your employer to request that you work in Canberra providing they give you reasonable notice.

NoAddedMSG NoAddedMSG 7:33 am 13 Jul 10

Ergh, and of course, the person you are having issues with will have read this, and will know it is about them. Do you think that will have helped the situation?

bloodymary bloodymary 12:03 am 13 Jul 10

i would suggest to speak with your human resource officer if you have one. clarify your rights and work arrangement. after all, HR is for employee’s best interest.

BimboGeek BimboGeek 10:23 pm 12 Jul 10

Thanks everyone for your responses. I called Legal Aid today but they need a couple of days to get back to me, so it’s a bit of a waiting game now. To clarify some of your questions:

Yes, the remote arrangement made with previous prez is in writing (email), but it is not in my contract. I can and do currently perform at least 80% of my job remotely. So harvyk1’s comment “if your not in Canberra you can’t do your job, and thus if you can’t do your job then they are within their rights to let you go” would apply if the newly added social events were my only responsibility, but not in this case. In fact I was waiting for the Prez’s call on Friday so I could suggest splitting the job and hiring someone else for event planning, leaving me with fewer hours to do the tech side, but allowing me to remain where I am. However not only did he not give me an opportunity to talk when he called last week and completely caught me off guard, he didn’t even bother to try again when I missed his call. Anyone else would have left a message or email to ring them back, but all I got was an email saying “comply with my directions or you will be fired”.

To nhand42 – I was on site for several years and 90% of all communication occurred over email. The only time I ever saw anyone was during social events, which have nothing to do with the technical aspect of the job. Anyway the most upsetting thing is that this guy is only going to be here for a year and will then move on with the position looking awesome on his resume and his bank balance slightly healthier (Prez is a paid position), but I was actually hired in the first place to help fix up things after “leaders” like him have gone through the place with their “control everything” attitudes. We were lucky to have a few good Prezs in my time who have concentrated more on building things up rather than tearing down whatever work others have done before them, but some do enjoy reinventing the wheel. Getting rid of me or hiring someone incompetent (as someone suggested) will have absolutely zero impact on this guy apart from a quick rush of power, because any negative impact of getting rid of me will either not be felt till his term is over or can easily be blamed on the poor new guy who has to learn how to do the million unrelated things that I do there.

No, I was not injured at work, and my treatment is now being done by a physio. There are physios in Canberra, it’s just that (a) I now don’t trust the free ones at the hospital who didn’t do a very good job on my hand earlier and (b) I can’t afford to pay for a private one, also (c) I like the one I have here and would rather have my review with the specialist at the Hand Clinic here than the surgery registrar in Canberra who did not even notice the second fracture or care about the horrible splint that was on my hand when I visited. He even asked me where I got such a horrible splint but then sent me to the OT without any further info/recommendations so they told me they didn’t have time for me and to come back in 8 days. They sent me home with the splint that the registrar called horrible (surely they could see that too?) which caused me to be back in emergency soon after with what looked very much like compartment syndrome. Whoa that is too much irrelevant information. I have friends in the hospital system in Sydney and they all assure me there is no point trying to take it on because it will be a lot of wasted effort and money on my part.

Ian Ian 9:54 pm 12 Jul 10

I suspect the best you’ll do out of FWA is to get a more reasonable timeframe for you to make the decision on being able to do the job in Canberra. The employer might be asked to jump through a few hoops on their rationale for the job having to be done onsite but that’s easy enough to justify.

Ari Ari 9:53 pm 12 Jul 10

Given the preemptive excuses, blame shifting and self-pity offered by the original poster:

“I broke my hand earlier this year, and the medical profession in Canberra only noticed and treated one out of my two fractures, splinted me incorrectly, causing further injury…

… I wanted to go to a city that has a hand clinic so my injury could be treated properly.

… Working remotely does not affect me performing my duties because I’m basically a computer nerd who … never gets seen by anyone anyway, except at social events, which I help organise

… So Friday I got a notification on my mobile phone after 10pm that I had a missed call. I’m in a very unstable reception area here, so this does happen from time to time.”

I would say the original post doesn’t quite give the full picture of this situation.

sepi sepi 9:12 pm 12 Jul 10

This is tricky, as they technically are not terminating your employment, but changing it.

I’m not sure what sort of notice they should be giving you that your job now required you to be 100% in Canberra. It is also probably very important to know whether it was officially agreed that you work remotely, or just a casual arrangement. Is the remote work arrangement documented, even in board minutes or something?

I would stall them a bit. Send them an email stating that you are working on moving your life back to canberra to resume your employment with them, but that you will need a longer time period to arrange that, and also ask for feedback on how the remote arrangements can be made to work better.

I’m sure they should be providing you with feedback on what is not working before changing your working conditions so drastically.

Anyway – I would stay business like, but show that you aren’t just going to go away. Meantime – contact Fair Work Australia for formal advice.

It does sound like time for a new job though. But don’t let this lot push you around – make sure they are doing things properly.

bd84 bd84 8:56 pm 12 Jul 10

From the facts presented, it may depend on whether the agreement you had with the previous president to work remotely was a formal agreement (i.e. written into your contract/employment agreement) or if it was an informal verbal agreement. If there was a formal agreement to allow you to work remotely, you could find there is a clause that allows management to change that decision based on the needs of the business. If you have no formal agreement, management’s request for you to work in Canberra will be a valid one, and termination could result if you don’t show up for a few days.

Anyway he’s a terrible boss, so this must be the fault of Workchoices. Oh wait, bosses being dheads to their staff isn’t supposed to happen under a Labor Government. Go to the CT! Quick!

nhand42 nhand42 6:17 pm 12 Jul 10

Unrelated to your actual question, but telecommuting isn’t a substitute for working onsite.

I have 20 years IT experience under the belt (UNIX), and I have telecommuted before (from AUS to USA), and although telecommuting is a lark it’s not a good value proposition for the employer. They aren’t getting value for money from you unless you’re onsite.

The technical aspect of IT is only a small part of the job. And only some technical bits can you do remotely. The majority of work involves face to face communication. Talking with the clients, learning their problems, understanding their processes and procedures, being involved in planning meetings, business requirement development, etc. It’s also extremely important to present a face that the staff can recognise; daily interaction with your team is 90% of the job.

Phones, e-mail, even video chat, are not good enough. They are 2nd-rate forms of communication. I know some sites around Canberra that use outsourced remote support and it’s rubbish. An onsite person is always better.

Genie Genie 5:01 pm 12 Jul 10

Call up the Fair Work Ombudsmen or go to http://www.fwo.gov.au

They should be able to give you advice. I recently dealt with them over poor working conditions and harassment etc, they were quite helpful.

troll-sniffer troll-sniffer 3:46 pm 12 Jul 10

Yeah doesn’t sound good, because unless you had the agreement to work remotely in writing, the employer is probably in the right in this case. Not very nice, but that’s not the issue.

If they do let you go all you can do is ensure your entitlements have been fully paid and hope that they replace you with someone incompetent.

bloodymary bloodymary 3:43 pm 12 Jul 10

T… the medical profession in Canberra only noticed and treated one out of my two fractures, splinted me incorrectly, causing further injury…

was it more appropriate if you filled a lawsuit against the medical practitioner for malpractice?

neanderthalsis neanderthalsis 2:05 pm 12 Jul 10

BG, Did you get an agreement for telecommuting in writing? Even a brief email that shows that the former President agreed would suffice. Secondly, was the hand injury work related?

I would suggest you get your Doctor to write up a treatment plan that details exactly how long you need to be undergoing treatment, forward this to the new El Presidente and say that due to the ongoing treatment, which is only available in some other location, you need to complete the specified treatment, failure to do so may further exascerbate the injury and lead to considerable time off work. If however El Presidente still presses for your return, go back but file a workers compensation claim (based on the advice previously given, El Presidente knew but in essence made you miss treatment for an existing injury).

And I would suggest that you keep a copy of all correspondence regarding the matter.

Aurelius Aurelius 2:04 pm 12 Jul 10

Even if you’re being screwed over, and even if you’re in the right, clearly the President and probably others have got you in their sights and your position is hanging by a thread.
Time to consider your options, and the easiest is probably seeking employment closer to your new home base.

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