Guest PocketMamma Posted April 12, 2011 Share Posted April 12, 2011 Rather complicated situation and I'm hoping someone here can help or point me in the right direction to find help. It's a long story (sorry :biggrin:).... I'm a kiwi/brit who entered on a special category visa (temporary visa that allows me to live, work indefinitely). I moved to Melbourne in mid December with my baby daughter (parter due to arrive at the end of the month after lengthy delays). When I moved over I was still employed and on maternity leave with my UK employer - this is due to end in June. My employer is a global media company that is an umbrella for various companies throughout the world. I informed them of my intentions to leave the country a few weeks before I left and we discussed the possiblity of me transferring to a Melbourne office. I also submitted a work proposal of duties I could perform for them from Australia working remotely from however this was rejected - I was suprised however let it go as was sure I'd get something over here (btw - I work in software development so this was definitely do-able technology-wise). So, I approached the 'sister' company in Melbourne but they also had no available roles (only looking for part-time). The reason why I am so keen to continue working for them (the job isn't that great!) is that I received additional maternity pay (on top of statutory pay) in the region of 7k GBP. In my contract it stipulates that if I do not return to work after my maternity leave ends and work for them for a further 6 months I must pay back the additional maternity pay. That's obviousy a great deal of money to pay back so I would rather work for them for 6 months and then resign. However, as I am no longer in the UK I can't return to the office I worked at, and they have no role for me in Melbourne either. My question is - can they chase me through the legal system over here to get their money, given that it is a global company?....or can they only threaten me via the UK legal system? I don't have that kind of money to just hand over - long gone with the expenses of moving etc - and it's they who rejected my reasonable work proposal. Can anyone advise? Link to comment Share on other sites More sharing options...
RockDr Posted April 12, 2011 Share Posted April 12, 2011 I don't know if they'd be able to chase you over here, but do you really want to end up in the situation that you can't go back to the UK because you're worried about being prosecuted through the UK legal system? If they really won't give you any work over here, maybe talk to them about putting together some sort of repayment scheme? Sounds to me like you need to have little chat to a lawyer to establish what your legal position actually is. Link to comment Share on other sites More sharing options...
AJ Posted April 12, 2011 Share Posted April 12, 2011 As you say it states if you do not return you have to pay it back - so you were fully aware of this when you signed the contract, will they not let you pay in instalments? Link to comment Share on other sites More sharing options...
Que Sera Sera Posted April 12, 2011 Share Posted April 12, 2011 What your talking about is contractual law as apposed to employment law which was my field in the UK. However you signed a contract then that is a document that is legally binding. However if the contract is legally binding only in the UK (read the wording) then the ex employer can only chase you throught the British courts system using a CCJ which if you are no longer resident in the UK is not enforcible. You really need to check the wording on your contract. You have offered to work for them at a different overseas office so you may be able to use that as an argument in your favour even if your contract is enforcible here.The only thing really that you do to think about is a reference. If you decide that you will need them at some time in the future to provide you with a reference then they can refuse or give you a bad one. It is a common misheld belief that an employer is not allowed to give you a bad reference they can and sometimes they do. If I were you I would get some proper legal advise if possible.:wubclub: Link to comment Share on other sites More sharing options...
AJ Posted April 12, 2011 Share Posted April 12, 2011 I should have clarified my last sentence - when I said 'Can anyone advise', I meant 'Can anyone advise as to whether an employee from another country can use the Australian legal system to get their money' I didn't say 'Can anyone advise as to how my behaviour is unethical, immoral, wrong etc etc' You don't know my personal circumstances, why I left the UK or anything else about me - so if you can't answer my question then save your moral judgements for your friends and family. Someones very touchy! You took your companies money so its only right you give them it back if you are not going back to work for them. If you think I was suggesting your were unethical and immoral then maybe you have got a guilty conscience! Link to comment Share on other sites More sharing options...
Parley Posted April 12, 2011 Share Posted April 12, 2011 They may be able to take legal action against you. Obviously maternity pay is intended so you can stay home and care for your baby. I don't believe its intended to fund moving expenses, flights etc on your migration exercise. In practice whether a global company would be bothered taking legal action over it I doubt. So you may have 'got away with it'. Link to comment Share on other sites More sharing options...
Guest PocketMamma Posted April 12, 2011 Share Posted April 12, 2011 Someones very touchy! You took your companies money so its only right you give them it back if you are not going back to work for them. If you think I was suggesting your were unethical and immoral then maybe you have got a guilty conscience! My comment wasn't directed at you, but rather another poster who has privately apologised and deleted their message. I've now also deleted mine. No - I don't have a guilty conscience - I was an extremely hard-working employee who gave a lot back to the company - a company I am still willing to work for if they can give me the the work. The money I got as maternity pay was spent long before I came to Australia. On extravagent things such as rent, bills, food. Shame I didn't have a rich husband to sponge off instead :wink: Link to comment Share on other sites More sharing options...
Guest PocketMamma Posted April 12, 2011 Share Posted April 12, 2011 What your talking about is contractual law as apposed to employment law which was my field in the UK. However you signed a contract then that is a document that is legally binding. However if the contract is legally binding only in the UK (read the wording) then the ex employer can only chase you throught the British courts system using a CCJ which if you are no longer resident in the UK is not enforcible. You really need to check the wording on your contract. You have offered to work for them at a different overseas office so you may be able to use that as an argument in your favour even if your contract is enforcible here.The only thing really that you do to think about is a reference. If you decide that you will need them at some time in the future to provide you with a reference then they can refuse or give you a bad one. It is a common misheld belief that an employer is not allowed to give you a bad reference they can and sometimes they do. If I were you I would get some proper legal advise if possible.:wubclub: Thank you - this is really helpful in that I at least now know I'm dealing with contractual law. I don't recall seeing a statement that indicated whether it was binding in the UK or globally. Though it did state I should return to the London office. I am still an employee - if I don't resign and they terminate my contract will it therefore still be binding? From my perspective they could've made more of an effort to give me work - the contract said I could submit a work proposal if I wanted to change the work conditions on my return (e.g. to part-time, work from home etc) which I did, and I thought my proposal was more than reasonable. I offered to do any work at all - admin, documentation, bug-fixing, any junior type activities (I have 15 years experience) - yet this was rejected. My managers reason for rejecting it was that they were now using a different technology which I didn't have specific experience in. However that's the nature of the job - I would've gotten up to speed if they gave me a chance. I'm willing to work - just need the work! Link to comment Share on other sites More sharing options...
Que Sera Sera Posted April 12, 2011 Share Posted April 12, 2011 I really dont think its an unusual situation. A lot of employers write these clauses in their contracts thinking they are watertight but in reallity no new Mother can really be expected to make a decision about returning to work after Maternity Leave before the child is even born. Many Mums choose not to return to work at he point of returning to work without any notice as they cannot face leaving the child at home. If an employer then decides to persue them for any money they have dangled in front of them as a carrot at a time when lets face it they really NEED that money. Then their only option is to go to a civil court and try and retreive the money. Even if they decided to pay to go to court then a court is unlikely to award much of a payment to a company from a women who is at home with a child and unemployed. So really, I dont think Judgeing this lady quite so harshly is so neccesary. Just my opinion :wubclub: Link to comment Share on other sites More sharing options...
Guest PocketMamma Posted April 12, 2011 Share Posted April 12, 2011 They may be able to take legal action against you.Obviously maternity pay is intended so you can stay home and care for your baby. I don't believe its intended to fund moving expenses, flights etc on your migration exercise. In practice whether a global company would be bothered taking legal action over it I doubt. So you may have 'got away with it'. My post was misleading - the maternity money WAS used for living expenses (all up to me with a partner out of work)....not for moving over (which was funded by my now long-gone savings). I was actually only on SMP (statutory maternity pay) a couple months before I left. The money in question had been paid out several months before I left. Link to comment Share on other sites More sharing options...
Que Sera Sera Posted April 12, 2011 Share Posted April 12, 2011 Thank you - this is really helpful in that I at least now know I'm dealing with contractual law. I don't recall seeing a statement that indicated whether it was binding in the UK or globally. Though it did state I should return to the London office. I am still an employee - if I don't resign and they terminate my contract will it therefore still be binding? From my perspective they could've made more of an effort to give me work - the contract said I could submit a work proposal if I wanted to change the work conditions on my return (e.g. to part-time, work from home etc) which I did, and I thought my proposal was more than reasonable. I offered to do any work at all - admin, documentation, bug-fixing, any junior type activities (I have 15 years experience) - yet this was rejected. My managers reason for rejecting it was that they were now using a different technology which I didn't have specific experience in. However that's the nature of the job - I would've gotten up to speed if they gave me a chance. I'm willing to work - just need the work! I cant give you a legal opinion even if I did work in the field anymore but really if they tried to take you to court then just keep all your correspondence where you have given them all the options and if you have to you can use that in any fight, If an employer wants to take you to court I would imagine they would need to do that in the UK courts and its isnt cheap. Some companies however could if they just decide that they will try and recover it. If you mearly dont return to work after Maternity Leave then they have two options. They can take that as your resignation or they can dismiss you for being absent without authority. They cannot use the Tribunal system as this is only available for Employees so they will have to foot the bill for any other action. My guess is that you might recieve a snotty sounding demand letter but I doubt it would go further. But as I said you may have to kiss a reference goodbye. OOH just as an afterthought. All the time you were on Maternity leave you were accrueing annual leave and officially even if you dont return to work they would have to pay you for it. So that may help any bargaining! Link to comment Share on other sites More sharing options...
Que Sera Sera Posted April 12, 2011 Share Posted April 12, 2011 My post was misleading - the maternity money WAS used for living expenses (all up to me with a partner out of work)....not for moving over (which was funded by my now long-gone savings). I was actually only on SMP (statutory maternity pay) a couple months before I left. The money in question had been paid out several months before I left. An employer cannot ask for Statutary Maternity Pay back because that is funded by the Government. The employer merely passes on the payment to the employee. Therefore as the money was never the companies they have no claim over it. The money in question is an amount the employer pays on top to encourage the employee back to work, as I said a carrott.:wubclub: Link to comment Share on other sites More sharing options...
Guest PocketMamma Posted April 12, 2011 Share Posted April 12, 2011 I cant give you a legal opinion even if I did work in the field anymore but really if they tried to take you to court then just keep all your correspondence where you have given them all the options and if you have to you can use that in any fight, If an employer wants to take you to court I would imagine they would need to do that in the UK courts and its isnt cheap. Some companies however could if they just decide that they will try and recover it. If you mearly dont return to work after Maternity Leave then they have two options. They can take that as your resignation or they can dismiss you for being absent without authority. They cannot use the Tribunal system as this is only available for Employees so they will have to foot the bill for any other action. My guess is that you might recieve a snotty sounding demand letter but I doubt it would go further. But as I said you may have to kiss a reference goodbye. OOH just as an afterthought. All the time you were on Maternity leave you were accrueing annual leave and officially even if you dont return to work they would have to pay you for it. So that may help any bargaining! Regarding annual leave - hadn't thought of that. That may cover a massive chunk of the additional payments! Thank you so much - I'm feeling a lot better after all your sound advice :notworthy: Link to comment Share on other sites More sharing options...
Parley Posted April 12, 2011 Share Posted April 12, 2011 Surprised the company payed extra in advance. I know my company makes an extra payment after the mum returns to work. Link to comment Share on other sites More sharing options...
Guest siamsusie Posted April 12, 2011 Share Posted April 12, 2011 Regarding annual leave - hadn't thought of that. That may cover a massive chunk of the additional payments! Thank you so much - I'm feeling a lot better after all your sound advice :notworthy: I am delighted you have been given some sound advice Mamma, I hope the situation resolves itself. :hug:Susie x Link to comment Share on other sites More sharing options...
Guest PocketMamma Posted April 12, 2011 Share Posted April 12, 2011 Surprised the company payed extra in advance.I know my company makes an extra payment after the mum returns to work. Well they don't exactly pay 'market rates' so maybe it's a benefit to make up for their rubbish pay :biggrin: I have several friends who work for company's with an even sweeter deal - you get additional maternity pay and DON'T have to pay it back if you don't return to work. I should've gone worked for one of them. Oh hindsight is a wonderful thing :biggrin: Link to comment Share on other sites More sharing options...
Guest NeilEB Posted April 12, 2011 Share Posted April 12, 2011 I used to work for a large company that did something similar - pay extra mat pay with the condition that you retunr to work for 6 months. Most mothers I knew who went on mat leave saved up the extra in case they didn't want to return to work. One thing you could possibly try is suing them - they are meant to keep a job open at the same pay grade for you, and have to justify why part time work is not acceptable. The issue about technology doesn't make sense - so they are saying that if you were going back to work full time then that wouldn't be acceptable either? I think short of threatening to sue them (and now you have left the country you have weakened your case a little bit), you will have to pay back the money. I doubt they could chase you through Oz though. Link to comment Share on other sites More sharing options...
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