sasbear

Anyone out there who can help me or direct me to advice with a problem.

My daughter had a job and has recently decided (she is being bullied at work) that she can no longer work there. She has just gone and resigned without notice. The employer is now threatening to penalise her financially.

She has signed no contract of any type - nor has she had any time off for annual leave in the entire employment (6 months). She was told she was perm and not casual - but she has never had any OH & S nor signed any docuemtns to agree to any notice period.

Her employee says she needs to give 2 weeks notice - and that this is standard and she doesn't need my daughter to have agreed to this previously.

Anyone can help on this?

TiddlyPom

In NSW a contract of employment can be written or oral, sorry to tell you.

Here's a link that might explain:


http://www.industrialrelations.nsw.g...mployment.html

Mr Grumpy

The employer still has to pay her for all days worked and all annual leave that has been accrued. nothing beyond that is legally required. The employer can not deduct income for time already worked and the employer most certainly can not touch the annual leave accrual.

The Woodcutter

Contracts, including contracts of employment, do not have to be in writing to have legal affect. (There are a few exceptions to this including contracts for the sale of land and consumer credit).

There is a legal contract of employment between your daughter and the employer. As she was bullied at work - did she raise this issue with the employer? If she did and they failed to act she may have grounds to claim constructive dismissal:
http://www.jobwatch.org.au/pages/con..._dismissal.htm

The employer is claiming breach of contract, inter alia, that your daughter failed to give proper notice of resignation. They could well be in their rights to sue for any financial loss incurred through your daughter leaving without working her notice but this is exceedingly unlikely from a practical standpoint.

Within Australian employment law there is also the issue of abandonment. Abandonment of Employment is where an employee is deemed to have repudiated their contract of employment through not attending for work and not notifying their supervisor as required. The absence must be for a minimum period of three consecutive work days and attempts must have been made by the Manager to contact the employee.

Granted, I do not know the circumstances surrounding your daughter's departure but I would hazard a guess that the employer is slightly agrieved and is indulging in macho posturing.

My advice?
Ignore the employer. If the employer persists - your daughter should write to them exlaining that she left because of bullying in the workplace - give specific incidents - and remind the employer that they have failed in their dury of care to provide a safe and healthy work environment both at common law and statute.

Hino

Exactly what "threats" has the employer made ?

wanderingwombat

Given the recent very well publicised convictions in Melbourne about workplace bullying, how would the employer feel about a TV interview if they threatened to sue??

Hino

Why are you responding to me ???

All I did was to ask the OP "Exactly what "threats" has the employer made ?"



If you 'require' information as to how the employer would react to an interview request, I suggest you get the name of the employer from the OP and ask them.

Have a nice day

The Bloke

It was, I think a quite reasonable comment on your post, made in the spirit of the forum, to encourage debate on the issue raised, which may help the OP.......

IvanM

I cannot see how they can penalise her financially. Most people I know who have quit early have taken a hit on reputation and cannot get a reference. No one I know has been hit in the pocket.

The first thing I would do is ask the employer for a signed contract and copies of any payslips. I would also be checking that they have been paying superannuation.

Here is an example where there is an agreementhttp://www.laclawyers.com.au/document/Employment-Law-__-Case-involving-an-Employee-failing-to-provide-notice-of-resignation-__-Leiminer's-case.aspx

Frankly in my opinion (which is not qualified legal opinion) I think that getting a piece of proper legal advice would be the best bet so you come across as forarmed to the employer. I doubt they want the expense of a tribunal and if they are as dodgu as they sound I doubt they want the ATO sniffing around for non Super compliance.

The following is also interesting

http://www.fairwork.gov.au/Terminati...role=employees

sasbear

Thanks for all the comments and advice.

The threat was'well you need to give 2 weeks notice, or we will be within our rights to withhold x amount of your wages'...then the manager went on to say...'I will clarify this with my husband (the other manager) when he retunrs in 2 days'.

My daughter is paid weekly, so a weeks notice is what she offered. Other girls working there in the past have resigned and they have been told to not bother working their notice.

I suppose we will have to wait until Monday to find out. But it seems that they are not within their rights to stop any monies owing that she has earned or payment of any accrued annual leave. This makes me feel better. I can't see them going through legal action to recoup $500 or so.

She has only worked there since September last year and was very happy in her previous role which was a traineeship. She was 'the face of Rydges' the hotel chain. Exceptional references and her old boss has often called to see if she wants to move back to Canberra and go back to work there.

I will check on the Super fund issue - thanks for pointin g that out.

I will keep you updated next week when things have panned out.

X

sasbear

[QUOTE=sasbear;8398108]Thanks for all the comments and advice.

The threat was'well you need to give 2 weeks notice, or we will be within our rights to withhold x amount of your wages'...then the manager went on to say...'I will clarify this with my husband (the other manager) when he retunrs in 2 days'.

My daughter is paid weekly, so a weeks notice is what she offered. Other girls working there in the past have resigned and they have been told to not bother working their notice.

I suppose we will have to wait until Monday to find out. But it seems that they are not within their rights to stop any monies owing that she has earned or payment of any accrued annual leave. This makes me feel better. I can't see them going through legal action to recoup $500 or so.



OK - update


She handed her notice as said previously. She was told she had to give 2 weeks notice so she agreed (didn't want to cause more trouble) - then when they gave her roster for the following week she was told she wasn't on it - so she was ok to finish. Her last day was Saturday.

She just checked her bank and her pay hasn't gone in. She called her ex manager and she was told she wasn't there. She called again later and was told the same. She called again and spoke with one of the other girls (not a very nice one -she was very bitchy towards daughter when she was working there) and asked if there was any reason that she couldn't speak with ex manager.....put her on hold a while and then said ex manager wouldn't talk to her.

Daughter finally got the information from the bitchy girl on phone that the reason she hadn't been paid was that she hadn't returned her uniform!!!!

It would have been easier all round had they told her this...anyhow she is coming home later and going to wash it and then return it later. I have asked her to speak politely and when she hands over the uniform to ask when her money will be transferred.

If they make her wait an unreasonable amount of time I will get involved.....grrrr

Red_V_Roger

[QUOTE=sasbear;8408553] Yeah, this appears to be a common unwritten rule. My mate was telling me that when someone left where he used to be, they made them hand in everything, even like old smelly boots that they had worn for years and stuff