VIC Contract Terminated - clause interpretation

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rmooreau

Active Member
25 June 2015
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Hi,

Just need some advice on a wording issue.

My employment was terminated yesterday, I have had some times off sporadically recently due to an injury and the reason they gave is they want me to focus on getting better. They have recently said they are very happy with my performance to several people at the agency and myself who have provided that feedback and I know it's busy. I'm curious if the clause below could be interpreted as written notice including payment?

The clause in the contract is:

Termination

It is expected that you will remain for the duration of the assignment unless there are extenuating circumstances. However, both <contractor> and <client> have the right to terminate the assignment at anytime due to non-suitability or where the job specification may have changed. In such circumstances, either <contractor> or <client> will provide 5 working days written notice of termination as negotiated with a <agency> consultant. However, if circumstances arise where you are dismissed due to poor performance or misconduct, then no notice will be paid.

Thanks
 

Rod

Lawyer
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27 May 2014
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Written notice means you either work during the notice period or get paid for it.

It is also arguable they should not have terminated you because of illness.
 
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rmooreau

Active Member
25 June 2015
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Thanks Rod for clarifying that. It helps a bunch!

I have submitted a complaint via the Victorian Equal Opportunity and Human Rights Commission so we'll see what happens with that too.
 

Rod

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FWC is better but must lodge a complaint within 21 from dismissal.
 

Rod

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Not necessarily important you there for only 6 weeks. Don't have time to check right now but you might want to confirm with a lawyer.
 

rmooreau

Active Member
25 June 2015
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Thanks

They have said they won't pay out my notice period because of poor performance as I didn't attend for two weeks. The reason I didn't attend for two weeks is because I was injured and they knew that. This has happened to me before. Is this legal?
 

Clancy

Well-Known Member
6 April 2016
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Thanks

They have said they won't pay out my notice period because of poor performance as I didn't attend for two weeks. The reason I didn't attend for two weeks is because I was injured and they knew that. This has happened to me before. Is this legal?
Did you get a doctors certificate for the two weeks? If you did, then they cannot refuse to pay your notice based of poor performance.due to being off sick. If you did not get a doctors certificate, then your out of luck because you need to prove your off work legitimate medical reasons.
 

rmooreau

Active Member
25 June 2015
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I saw the Dr like every few days. I didn't get a certificate but I could get one printed. Would I have had to send one at the time? I was in daily contact and they were like that's fine focus on getting better etc. I also attended hospital.
 

Rod

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You likely have an action against the ex-employer.