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WA Issues with Disability Support Worker Employment Contract

Discussion in 'Employment Law Forum' started by mgr2000, 5 October 2015.

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  1. mgr2000

    mgr2000 Member

    5 October 2015
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    I would appreciate your feedback, perhaps even some assistance if possible.

    Back in February 2015, my wife applied for a position of Disability support worker. She was interviewed by the company manager and director (Miss D.) who explained the designated tasks involved when supporting and assisting clients with a disability in their living environment.

    My wife successfully passed her job interview and was asked to start in March. Her duties were to care for two clients who have cerebral palsy and for another client who has Autism.

    Whilst a working roster was supplied, my wife did not receive an employment contract at all. She was advised that she was placed on probation for a period of 3 months. After repeatedly asking the manager – company director for the contract, the following reply was given (sent as a text message) 3 weeks after my wife started to work.

    Text message:
    Also just letting you know that as client 1, 2 and 3 are employing you directly themselves anyone applying for loans, etc. will list them directly as the employee. You are employed under the private and domestic householders so usual policies and legislation that the big agency's have in place do not apply for these guys, industrial relation Laws in WA are very flexible and state they can set their own guidelines, pays, holidays etc, hence being able to give you 10 weeks off a year. Again I will explain all of this in greater detail when we meet. I think I have remembered everything but please if anyone requires further clarification on anything just give me a buzz anytime. Enjoy your weekend

    One day later another text message was sent by the company director, this time addressing some of the contract details: Client 1 + 2 permanent employments (including leave and superannuation), Client 3 only casual employments due to insufficient funding.

    End of May, a written confirmation was given the probation period has ended. However the actual
    Employment contracts were still not provided.

    21th of June another mail was sent from the company director to my wife, stating that she passed her probation period ‘with flying colors’ and that she is now an official part of the team

    27th of June; my wife had attended a meeting at the company’s director house to finally sign 3 employment contracts. She had to sign the contracts on the spot without having the opportunity to take them home first.

    Some of the contracts' details:
    1. Term – The employment shall commence on 29.06.2015
    2 Contract of Service: On initial engagement the Employee shall be played on probation for a period of 3 months. At the end of the 3 months period the Employer may confirms the appointment, terminate the engagement or extend the probationary period for up another 3 months with the Employee.
    3. Termination of employment:
    Probationary period: 1 weeks’ notice
    All other times: 4 weeks’ notice

    I was unfortunately overseas when my wife received and signed these contracts.

    My wife continued working for these 3 clients/ or company which resulted in a lot of hours in excess.
    In short, she had to work between up 72 hours a week!

    I started to question the work ethics of this company and told my wife to ask for the latest payslips and PAYG certs as we still didn’t had the necessary paperwork to file for a tax return. None of the payslips had an ABN or WPN number listed. Entitlements from previous pay periods were either missing or being wrongly accumulated. Whilst a human error can occur, there have been far too many mistakes on this for my liking.

    These issues were addressed to the manager/ company director, just before my wife went on her holiday break. Miss D promised to have matters sorted out once my wife would be back from her holiday. However raising these issues to the manager triggered an unexpected reaction.

    My wife received, whilst on holiday, a phone call from the company’s director mother ( who also works there as a support worker) who told her that there would be a number of changes including that she would no longer work for client 2. My wife tried to get in touch with the company director who did not return the phone calls.

    The following day, my wife received a text message from the mother of the company director asking if they could meet at a coffee shop next day. However 25 minutes prior to the meeting, the mother sends a text message saying: ‘So sorry have to cancel. Will explain later’.

    Two days later Wed 16.09.2015, my wife received the following email from client 2:
    (Due to unforeseen circumstances and my current situation, please be advice as of Monday the 14th of September that all employment contracts have been cancelled effective immediately.)

    But things got even worse when the company director and a co-worker visited Client 2, to discuss matters in relation to my wife’s work contract. During their conversation, Client 2 must have accidentally dialed my wife’s mobile number which resulted that a recording of their conversation was left on my message bank.

    It’s pretty bad if people decide to bad mouth a work colleague, but to record your own verbal abuse on a staff member’s mobile phone message bank is just despicable.

    My wife felt absolutely humiliated when she had to listen to this 3 minute recording. The message included degrading comments such as: “F… it, I don’t care, don’t give her anything, that will f… her up etc. (by the Company Director).

    My wife was emotionally run down and was terrified to return to work, after she had to listen to this verbal abuse. She eventually went back to work the following day to care for Client 1, which appeared to be a mistake. The entire work situation had taken its toll on her. She had nonstop crying and vomiting attacks. Consequently I sent her to the doctor who said she would be unfit for work. Since that she been given medication to treat anxiety and has been referred to a Psychologist.

    My wife emailed the medical certificate and including a letter to the company director/manager asking to send her the outstanding payslips for the period August and September 2015.

    The company director rang my wife 2 hours later to inform her, that her employment with client 1 has come to end immediately and that one week notice being given.

    As you can imagine, I do have the strong desire to pursue matters against this company for so many legitimate reasons. Therefore I would appreciate some input regarding the following points:

    1: My wife was always under the impression that she was working for a company and not for three independent employers. All given worksheets and rosters have the company name and logo on. Miss D. who represents the 3 clients, is the company director. Plus two of the clients are also shareholders and directors of the company. I therefore feel that these 3 employment contracts were used as ‘sham’ contracts to assure that the company has not to comply with certain regulations.

    As I outlined, my wife worked up 72 hours per week. One day she did a 20 hour shift with no break at all. No penalty rates ever paid at all. On other occasions she was paid an hourly rate of $15.71 when doing nights shifts.

    My question is, can and should I forward this case to Fair Work Australia Ombudsman? I am worried that they may refuse to investigate the case, if it appears to be of their jurisdiction (Employment under private and domestic householders or company)
    Finally, my wife still has not received her final pays and leave and super entitlements.

    As English is not our first language, I do apologize for any grammar and spelling errors.
  2. Therese

    Therese Well-Known Member

    11 October 2015
    Likes Received:
    Hi Mgr 2000,

    I would definitely get Fair Work Australia involved!

    I would suggest explaining them the situation and asking what possible claims could be pursued.

    My understanding is that the 'company' has not followed employment law in regards to the lack of employment contract and misleading your wife in who she was employed by. There may also be a claim for unfair dismissal if she was fired outside the terms of the 'contract'.

    I would suggest getting in contact with Fair Work Australia and from there continue the matter from their perspective of the matter.

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