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WA Forced to Quit 457 Visa Job for New Job - Redundancy Compensation?

Discussion in 'Employment Law Forum' started by Shaw, 8 February 2015.

  1. Shaw

    Shaw Member

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    Hi ,
    I was on a 457 visa with a stable job (Oil and Gas industry) with a 5 years contract and was in my 3rd year of my job with company A. Had an offer to jump to a much bigger player in the Oil and gas industry (Company B). I agreed and they made me take my pre-employment medical in May 2014 which I passed and finally made me sign an offer letter on 2 August 2014. The last thing left was the 457 visa transfer and it came trough by 30 September 2014. I only got the notification of visa transfer on 1st week of October 2014.

    Company B was forcing me to quit company A and join them. As I had to give a month's notice to company A, I informed company B I will be joining on 9th of November 2014. When 9th of November came, I called up my new boss and he told me to wait for Dec 2014 as there had less jobs running at that time. I did ask them how come I am not on payroll? then i was informed by company B I wouldn't be on payroll until I was flown in to Australia and sign another paper called a contract. So, I waited and called him back 1st of Dec 2014 (ps. by that time the world was under oil crisis) and he said wait for next week. The following week, I called back and he said the following week. By the 3rd week I did question him if I should be worried and he said "Aren't you already? have faith things will get better". This went on until end of the year 2014 and finally their company announced globally that they are reducing massive head counts world wide. The last promise company B made was to get me in by Jan 2015. When January 2015 came, they didn't answer my phone calls and also my e-mails(both HR and the manager).

    I was worried because my bills were reaching their due dates and I had mortgages to pay. I called up my friend whom recommended me the job and she was shocked of my story and called them to ask what was going on. Finally, HR picked up my line and said sorry I was away and the manager is still away. So she told me to wait until end off the month Jan 2015.

    End of Jan 2015 came, I felt its better to get things clear so I took a flight in to visit my new company. They were shocked to see me there. I waited for my manager for 3 hours. He came back and assisted me to the meeting room. He told me, sorry for keeping you waiting all this months and when on saying "the only reason you are still with us is because you are very good, talented and would be an asset to the company and I am trying to get you a place in Malaysia for the time being" (my home country) since the clients have kept a hold to the projects here in Australia". At the end of the conversation he said by next Friday, 6 February 2015 we will have an answer for you. In between he also asked me how much was my mortgages.

    6 December 2015 came, I walked in to the meeting room with my manager, where by HR was sitting in the room. I was handed in a letter saying the company has to withdraw the offer given to me due to the market condition and then a deed of release was given to me to be signed. They made me read it and asked me to sign it. After reading it, I looked up at both of them and said "I wasn't expecting this". One of the main item which was stated in the Deed of Release, I would file a law suit against the company besides the fact they had a compensation (base pay from 9th of November 2014 until 6 February 2015 plus 1 and a half months of base salary) - where by the HR was repeatedly chanting it was under goodwill of the company.

    I told them, "I worked so hard for 3 years in Australia to get a name and reputation to build my CV to join my dream company which is Company B and the main point here company B forced me to quit from company A. If you have told me that I would be on pay in company A, work for them as they needed me and still wait for your call. Now you ask me to sign this during on of the worse oil crisis and give me a compensation of such, which is not enough and also I only have 90 days to search for a new job in Australia. How am I to search for a job?" I didn't raise my voice I was very calm when I spoke this. They told me they tried their best to find me a spot in other regions but they failed. (ps. Till today I am in Australia under my own expenses for a job promised and I did request if you could take in my expenses since I flew in. They said no Mr [x] you have to understand you are not employed yet under us and we are giving the money as a "Goodwill". I feel the company owes me my pay from 9 November 2014 till 6 February 2014 and maybe the rest is good will. Their goodwill is not enough as the months they owe me. I have to go back and pay bills and mortgage. What about the month to come? My commitments are based on my Australian pay for the past 3 years.

    This happened 2 days ago, where I thought I was finally joining my dream job as I entered the building and went i came out I was still shocked but I realise my Australian dream has been shattered by another hoax of a dream. I haven't signed the Deed of Release as I wanted to seek for advice while still in Australia. I hope someone could help me out on my rights.

    Thanks for reading patiently and really hope someone can advice me on the compensation because the company said there is not other options. I know I have been done wrong but I need some advice legal to ensure it.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Shaw, this is a very unfortunate situation and obviously very frustrating for you.

    You have done the right thing by seeking some legal advice prior to signing the Deed of Release.

    As a holder of a 457 Visa, you are covered by the Fair Work Act 2009, which means you are entitled to basic rights with respect to pay and working conditions and protections in the workplace. Company B must treat you in the same way as an Australian worker performing the same work. This requires that they do certain things, including pay your reasonable and necessary travel expenses.

    Did you ever sign this contract that you refer to here?

    In any event, by getting you to sign a Deed of release, I imagine Company B considers themselves somehow contractually bound to employ you and that you probably have a cause of action against them to claim for your lost wages. By signing the letter of offer, there is an argument that there has been an offer and acceptance which means a contract of employment - even if you hadn't signed the "contract" document. You may have a claim for breach of contract or unfair dismissal, as this appears to be a case of constructive dismissal. Also you might have a claim in promissory estoppel because you relied upon their representation that they would employ you and quit your job with Company A which as resulted in you suffering loss.

    Estoppel may be claimed where one employer makes a promise to you and you rely on that promise to your detriment. ( These are cases where this has been discussed - Australian Crime Commission v Gray [2003] NSWCA 318 at [200]; Legione v Hately (1983) 152 CLR; Galaxidis v Glaxidis [2004] NSWCA 111). You can rely on an action in estoppel by representation to stop the company who promised you employment from going back on its word or promise.

    There is commentary by legal experts that estoppel might be used in situations where written contracts contain short notice periods, notwithstanding oral commitments by an employer that a job is a secure, long term position. If you successfully brought a claim in estoppel you would be entitled to have Company B adhere to its promise and uphold their end of the contract or pay a reasonable period of notice for the position that was promised.

    I would immediately call the Fair Work Ombudsman on 131 394 or Unions Australia on 1300 486 466 to get their opinion as to your rights and what you should do. If they are no help I would seek the advice of an employment lawyer.
     

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