WA Employment Rights - Partner's Employers Refusing Access to Contract

[Aroha Watson]

My Partner started working for a company 3 months ago, as of 2 weeks ago they started advertising for his position, telling other workers that my partner no longer has a job due to him not having a drivers licence. They never asked about that when he signed the contract, they have not said anything to my partner just to other workers.

Somehow they found out we were going to take them to Fair Work Australia for unfair dismissal and now they refuse to dismiss him, still refusing him work and they are now saying that there is nothing we can do because they won't dismiss him. They are refusing to give him access to his employment contract so we can see how many hours he was promised on the employment contract, ( we never got a copy of his contract when he got the job ). We really don't know what our employee rights are or if there is anything we can do under Employment Law.

Please help us, we are getting desperate.

Thank you

 

[James D. Ford - Solicitor]

Hi Aroha

It is possible that your partner is an independent contractor, rather than an employee.

Many factors are taken into account in assessing this..

Please look here for guidance.

Contractors and employees - what's the difference? - Fact sheets - Fair Work Ombudsman

If he is an employee - then, if they continue to refuse to terminate his employment.

After 6 months service, he might be eligible to apply for unfair dismissal.

Here is more information on "unfair dismissal".

Unfair dismissal - Ending employment - Fair Work Ombudsman

It does not matter that they have not officially terminated his employment.

It is a complex situation, however look up the term "constructive dismissal", which is treated the same as a dismissal, and is where the employer makes it untenable to continue working, and you have no other choice but to resign.

Constructive dismissal | Workplace Info

Kind regards

 

[James D. Ford - Solicitor]

Regardless of whether you partner is an Employee or Contractor, depending on the terms of the Contract, he may have a right to sue for breach of Contract.

We can address this, once you have worked through the above...

It is possible that the employer can be compelled to provide a copy of the Contract. Were there any witnesses to the Contract being signed? What does your partner remember about the Contract? Was it a standard Contract? Can your partner obtain a copy from one of the other drivers?

Kind regards,

James