tadgh99 Posted March 4, 2015 Share Posted March 4, 2015 Hello, Wonder if anyone could shed some light or suggest a good law firm. We arrived at the end of last year under my partners 457 visa (sponsored by my partners employer). Recently, my partner has been forced to resign from the job or face disciplinary action. Suffice it to say, we believe that we have a strong case of unfair dismissal against the employer and have lodged a complaint with the Fair Work Commission. My partner has been employed by the company for over 5 years in the UK and this was an international transfer. Upon speaking with a couple of No Win No Fee companies, they have stated that because my partner has been here less than 6 months, my partner would be unable to take any action against the former employer in Australia.:skeptical: I'm no legal expert but, surely, the duration of my partners employment is way over the minimum of two years in total for dismissal cases which would mean we could bring a case against the employer? Or does the clock reset to zero upon moving to Australia? There is no break in the contract and has been classed continual employment with the same company. Would anyone reading have any views on this or know of any employment law company that specialises in international transfer cases? We're based in NSW Thanks in advance. Link to comment Share on other sites More sharing options...
calNgary Posted March 4, 2015 Share Posted March 4, 2015 I have no idea sorry, but if a no win ,no fee company won't take the case on, you may struggle to find anyone who will. Good luck though Cal x Link to comment Share on other sites More sharing options...
AJ Posted March 4, 2015 Share Posted March 4, 2015 I wouldn't know either but the company must think they have a good case if he was facing disciplinary action, they must have a reason for this Link to comment Share on other sites More sharing options...
tadgh99 Posted March 4, 2015 Author Share Posted March 4, 2015 I can't go into details about it (obviously), but the feedback my partner has had (from Senior Execs in the same industry) is that they've been extremely over zealous with their actions. There are also procedures to be followed, which haven't been done. Link to comment Share on other sites More sharing options...
VERYSTORMY Posted March 4, 2015 Share Posted March 4, 2015 I can't say how it would work for definite, but, using immi law as a guide, my guess is that yes, the clock would have reset when he joined the australian company as it will almost certainly operate with its own corporate charter - it has an abn and things. What at you need to concentrate on is the alternative visa options if you want to stay in oz. The end of a 457 means the clock is ticking for you with 90 days to find an alternative sponsor or be able to lodge another visa application or you will, after 90 days, have to leave the country. Link to comment Share on other sites More sharing options...
Que Sera Sera Posted March 4, 2015 Share Posted March 4, 2015 It's unlikely you'd be able to persue an unfair dismissal claim here in Australia as he wont have the required service. If however he was led to beleive it was an ongoing contract and he had no more than a two week break from finishing at his UK place of work and starting at his Australian place of work, he could potentially persue an unfair dismissal claim against his UK firm. To lodge a claim at tribunal is free and can be done from abroad. There are no guarantees and it won't help your present situation. You need to find a new sponsor asap and unfortunately that's going to be difficult if the reasons for his leaving his last sponsor come to light. Link to comment Share on other sites More sharing options...
ciaranmacgiolla Posted March 4, 2015 Share Posted March 4, 2015 If he is in a god position, I wouldn't have resigned, face the action and then fight it... Link to comment Share on other sites More sharing options...
Paul1Perth Posted March 5, 2015 Share Posted March 5, 2015 I would have though the fair work commission would be looking into it for you. Try chasing them every day to see what's happening. Link to comment Share on other sites More sharing options...
VERYSTORMY Posted March 5, 2015 Share Posted March 5, 2015 Be aware of the income threshold for Fair Work. If it is over a certain amount, they will not help. Link to comment Share on other sites More sharing options...
Parley Posted March 5, 2015 Share Posted March 5, 2015 You say your partner resigned, not that he was dismissed. If he resigned you will find it difficult to argue that he was unfairly dismissed. It is adviseable to never resign in these sorts of situations as you really eliminate many legal and other options that you would otherwise have. Link to comment Share on other sites More sharing options...
JockinTas Posted March 5, 2015 Share Posted March 5, 2015 ^^^ Yes, I was puzzled about that too. So was it an unfair dismissal or a resignation? Helluva difference. Link to comment Share on other sites More sharing options...
Loopylu Posted March 5, 2015 Share Posted March 5, 2015 ^^^ Yes, I was puzzled about that too. So was it an unfair dismissal or a resignation? Helluva difference. Have you guys never heard of constructive dismissal? Basically it is being forced to resign because the employer makes it impossible for you to put up with working for them. If, as the poster suggests, the disciplinary action against her partner is unfounded and the employer is telling her partner to resign then this could be constructive dismissal. This article should give the poster some assistance: http://www.mondaq.com/australia/x/247688/Redundancy+Layoff/What+Is+Constructive+Dismissal I am not an employment law specialist, but I think her partner should look for an alternative 457 sponsor/work and also try to reach a compromise agreement with the employer under which the employee agrees to settle for a certain sum of money to walk away provided that the employer undertakes not to bad mouth the employee when providing a reference to the new employer. This would probably be the best outcome for the employee. Speaking from experience, once they are gunning for you they will do whatever they can to get rid of you. You have to take control of when you leave and on what terms. If the person works for a large company then they may have access to a free employee assistance program where you can get advice from counsellors on employer/employee relations and your options. All the best to the poster. Link to comment Share on other sites More sharing options...
Parley Posted March 5, 2015 Share Posted March 5, 2015 Regardless it is a very bad move to resign voluntarily. It is much easier to take legal action if they have sacked you. They will just say the employee has resigned voluntarily and nothing to do with them. Link to comment Share on other sites More sharing options...
JockinTas Posted March 5, 2015 Share Posted March 5, 2015 Have you guys never heard of constructive dismissal? Basically it is being forced to resign because the employer makes it impossible for you to put up with working for them. If, as the poster suggests, the disciplinary action against her partner is unfounded and the employer is telling her partner to resign then this could be constructive dismissal. This article should give the poster some assistance: http://www.mondaq.com/australia/x/247688/Redundancy+Layoff/What+Is+Constructive+Dismissal I am not an employment law specialist, but I think her partner should look for an alternative 457 sponsor/work and also try to reach a compromise agreement with the employer under which the employee agrees to settle for a certain sum of money to walk away provided that the employer undertakes not to bad mouth the employee when providing a reference to the new employer. This would probably be the best outcome for the employee. Speaking from experience, once they are gunning for you they will do whatever they can to get rid of you. You have to take control of when you leave and on what terms. If the person works for a large company then they may have access to a free employee assistance program where you can get advice from counsellors on employer/employee relations and your options. All the best to the poster. No, I had never heard of constructive dismissal before. Thanks for the info. Link to comment Share on other sites More sharing options...
Bungo Posted March 5, 2015 Share Posted March 5, 2015 Being forced to resign is indeed constructive dismissal, but OP said unfair dismissal and they are two different things and should not be mixed up. Having said that, I think forget it and put energy into something else, like finding a new job or planning the move back. Presumably they had a new legal employer (the Australian company) after they transferred and I would definitely think the clock would only count from then for these purposes. Link to comment Share on other sites More sharing options...
tadgh99 Posted March 23, 2015 Author Share Posted March 23, 2015 Hi All, Just an update. The clock was indeed reset. But we've now engaged a solicitor who thinks that my partners former employer have breached a number of employment procedures. Can't go into anymore detail as I don't know who is reading this thread. Suffice it to say, this is far from over and our solicitor is well and truly on the case Link to comment Share on other sites More sharing options...
tadgh99 Posted March 23, 2015 Author Share Posted March 23, 2015 Being forced to resign is indeed constructive dismissal, but OP said unfair dismissal and they are two different things and should not be mixed up. When going down the Fair Work Commission route first of all, there isn't an option to classify this as constructive dismissal, the closest description on the FWC application is "Resignation due to employers behaviour". Which is still seen as Unfair Dismissal in the eyes of the FWC. However, you are correct (outside of the FWCs remit) in that this is a case of constructive dismissal as my partner resigned and was not sacked. Link to comment Share on other sites More sharing options...
Parley Posted March 23, 2015 Share Posted March 23, 2015 Just be aware that being placed on performance management or disciplinary action is not bullying, so be careful about spending too much on solicitors. Usually best to move on with your life. Link to comment Share on other sites More sharing options...
tadgh99 Posted March 23, 2015 Author Share Posted March 23, 2015 My partner was not on performance management. There was no adherence to the disciplinary procedures (as laid out by them in the contract). Normally I would agree with you about moving on. But (i) knowing that several members of staff there have been involved in gross misconduct acts and had no action taken against them (not even a warning) (ii) The view within in the industry was that the offence was not serious enough to warrant the action my partners former employer took. Disciplinary action is not bullying is correct. But undertaking a disciplinary action (and threatening if they don't resign, is bullying. Would you not agree? Link to comment Share on other sites More sharing options...
Parley Posted March 23, 2015 Share Posted March 23, 2015 Did they threaten to sack him ? Link to comment Share on other sites More sharing options...
tadgh99 Posted March 23, 2015 Author Share Posted March 23, 2015 Worse...can't comment on what they threatened exactly, but they threatened something that they couldn't enforce or initiate as it isn't down to them. Link to comment Share on other sites More sharing options...
akiralx Posted March 23, 2015 Share Posted March 23, 2015 Worse...can't comment on what they threatened exactly, but they threatened something that they couldn't enforce or initiate as it isn't down to them. We seem to be getting half the story - why can't you comment: you, your partner and the company concerned can't be identified from your posts so just tell us what happened... Link to comment Share on other sites More sharing options...
tadgh99 Posted March 23, 2015 Author Share Posted March 23, 2015 Sorry, I am not in a position to say anything as we are taking legal action. Once it's all done I will be more than happy to go into the details and even name and shame some of the people involved (they are poms, so may well be known to readers on this site). I only wanted to pop on here to give readers an update as to what had happened so far (for those that were interested or provided some help) as I know how rude and frustrating is can be when you offer some advice and the OP just disappears off from the forum leaving you high and dry as to what happened. Link to comment Share on other sites More sharing options...
boganbear Posted March 23, 2015 Share Posted March 23, 2015 Get your lawyer to look at USMAN ALI v INDUSTRIES SERVICES TRAINING PTY LTD [2011] FWA 9177. Employment by the same company overseas can be counted which is some good news. On the issue of constructive dismissal I cannot assist. Best to look for a new employer and lodge an application asap to be on the safe side Link to comment Share on other sites More sharing options...
flag of convenience Posted March 23, 2015 Share Posted March 23, 2015 Have you guys never heard of constructive dismissal? Basically it is being forced to resign because the employer makes it impossible for you to put up with working for them. If, as the poster suggests, the disciplinary action against her partner is unfounded and the employer is telling her partner to resign then this could be constructive dismissal. This article should give the poster some assistance: http://www.mondaq.com/australia/x/247688/Redundancy+Layoff/What+Is+Constructive+Dismissal I am not an employment law specialist, but I think her partner should look for an alternative 457 sponsor/work and also try to reach a compromise agreement with the employer under which the employee agrees to settle for a certain sum of money to walk away provided that the employer undertakes not to bad mouth the employee when providing a reference to the new employer. This would probably be the best outcome for the employee. Speaking from experience, once they are gunning for you they will do whatever they can to get rid of you. You have to take control of when you leave and on what terms. If the person works for a large company then they may have access to a free employee assistance program where you can get advice from counsellors on employer/employee relations and your options. All the best to the poster. A very worthy contribution. I'm afraid constructive dismissal is not that uncommon but hard to prove. Generally if not of the fighting nature and willing to dig in, regardless of cost to well being, it is generally accepted a resignation and good a verbal reference towards positions applied for will be agreed outcomes. As work becomes tougher we can surely expect ever more of this behaviour. Legal action will/should result in better outcomes such as payouts. I have no idea on a 457 with limited duration. But I would suggest legal advice. If a resignation has already been tendered though I'm afraid not much can likely be done. Unless of course you can prove it was done under harassment which can be difficult. Link to comment Share on other sites More sharing options...
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