VIC Let go during probation period - alleged deteriorating behaviours and attitude

[jwelchnz]

Hello,

I have recently been dismissed during my probationary period on October 6, 2020

I started with the organisation in August 2020. My working relationship and efforts were highly recognised by the organisation and I have these all in emails.

Most communication is via teams video/chat and email. I have all records of emails and team's conversations displaying professional behaviours and attitudes.

On September 30, 2020 I discussed with my manager that given I only work 4 days a week I may go into business as a sole trader to provide disability supports. I was advised she would look into it for me. It also stated in my contract that:
Other Employment and Conflicts of Interest
You shall not, for the duration of this Contract, set up or engage in private business or undertake other employment in direct or indirect conflict with the Summer Foundation using knowledge or systems gained during the course of or in connection with your employment with the ******. However, subject to prior notice to the ******, and the ***** consent (which shall not be unreasonably withheld), you may undertake other employment, so long as such employment is in your own time and does not conflict with the employment with the ******

While I waited, I created a website that I published stating coming soon and shared this with my manager to keep transparency. She advised she was still looking into any conflict of interest. In all my emails it states I am not trading, waiting for approval and I appreciate the position of the organisation.

Over the weekend I registered a business name and on the Monday informed my manager. She finally reached out to HR and so did I. When I spoke to HR I was advised a meeting would be held today with my manager and they would discuss the conflict of interest policy. I was not invited as much as I wanted to be but nor did I ask. I just followed the process. However, I did send an email before they met, outlining my plans, what’s happened to date and no trading has begun.

That evening I received an email from my manager with a conflict of interest submission and to identify any conflict. It stated you can send this to your manager or CEO. This was sent to my manager the same night.

The following day, October 6th I meet with my manager and hers and was thanked for the submission. My manager said she felt it was a conflict of interest and would review my submission and then forward it to the CEO. I was asked twice if I had further questions and I said no. I felt I needed to let the process take its course

I then sent the submission to the CEO as it said in the policy I could.

At 11:22 I sent a complaint to HR not feeling like my manager was as transparent as I have been and that I would have been like to have been a part of the conversation.

At 12:30 I checked my manager's calendar to contact her regarding an email form an external stakeholder and it showed private meeting. I the checked HR's calendar and the same appeared on that calendar. I knew my complaint was being discussed.

At 1:15 I got a calendar invite for 1:30 from my manager. I attended the meeting and she sacked me during probation for deteriorating behaviours and attitude. She also accused me of promoting my website internally and I corrected her by saying I shared this with you to keep transparency.

I have since had a technical writer read all the emails and conversations, and she has advised my emails are of professional and understanding of the organisation’s policies and I was compliant, friendly and made no fuss.

The meeting when I was sacked was so quick, and I believe with the evidence I have I was sacked for laying a complaint. There has been no performance issues. I also have emails from my manager commending my hard work. It’s been a terrible experience.

I firmly believe adverse action has taken place for laying a complaint

 

[Paul Cott]

Hi jwelchnz,

You may have a general protections claim based on the facts as you have described them (you have set the facts out well).

You can lodge such a claim and run it yourself but there are risks as a general protections claim is based on unlawful breaches of the Fair Work Act.

 

[jwelchnz]

Hello Paul,

Yes I believe I do have a solid general protections claim that has now been lodged with FWC. In my view it would be best for the employer to settle outside before conciliation. If conciliation takes place, I will be lodging in the Federal Circuit and not consenting to arbitration by the FWC. I am extremely confident this would be ruled in my favour.

I have emails where I have stated my gratitude to the organisation for the assistance of trying to work out if my business would be a conflict of interest, stating I would not start trading until approval was met and that I respected the organisation's position. Now you cant tell me that's deteriorating behaviours and attitude. Especially when you have not been reprimanded for any behaviours our attitude during the course of employment, and only have written communication with praise and thanks for the swell job you are doing.

With the evidence I have, which is substantially overwhelming, I don't believe the organisation has any solid ground. There had been no deteriorating factors up until 11:22am seeing dismissal at 1:30pm.

Was absolutely dumbfounded that the organisation did that. When it happened via zoom meetings, I shut my laptop lid and kind of laughed, because during the dismissal you could clearly see they were nervous. It's so disappointing, my role with the organisation was excellent and I really enjoyed it.

As a former manager/team leader I know that terminating someone's employment even if on probation for raising a complaint could give cause to a claim in the FWC under general protections. What I cant believe is how evidentially clear it is that a complaint was made and within 2 hours and 8 minutes after the fact, employment was terminated.

The organisation has not responded, so I imagine they will be in solid consultation with their representation.

Very poor Human Resource process. Especially for that HR delegate who has only been with the organisation for two months.

 

[Rod]

I don't like your chances.

You were not sacked because you complained, you were sacked for breach of contract.

 

[jwelchnz]

Can you please explain further. That was not listed on my termination letter. The organisation were assisting me to complete any conflict of interest documentation kindly to get my project off the ground. This is demonstrated in 9 emails where they collaborated with me. If it was a breech of contract, one would assume that

a) it would be raised straight away, or mentioned (it wasn’t)
b) they would not of assisted with sending me via email a conflict of interest template to submit back to them
c) the organisation would of placed this in the letter of dismissal.

Demonstrated in all communications as we are remote working, it is clear my compliance of requests being made and statements from myself advising of not engaging in any trade until an approval is received. Today I still have not engaged in trade as I think it would be respectful to wait after the conciliation meeting.

In all emails it’s very clear I upheld the behaviours and attitudes that were expected of me, especially showing my appreciation for the help received and the praise for my continuing good work up until the day I was dismissed.

You can’t make a claim of deteriorating behaviour and attitude in a dismissal letter when all communications between employee and employer reflect the opposite.

There was absolutely no issue until 11:22am when I complained about my manager and not being invited to a meeting I felt I should of been apart of.

And then dismissed 1:28 minutes later.

Also I took a screen cap of the shared calendars between my manager, my managers gm and HR. The meeting stated private held for 12:30pm and had been created at 11:45am.

I think I have a great chance. The series of events on paper leads one to think they dismissed based on a complaint using a terrible excuse of deteriorating behaviours and attitudes. The dismissal letter should of said breach of contractual obligations as listed in your employment agreement, if that’s how they felt. Which clearly they didn’t. They just didn’t want to deal with a complaint.

your thoughts?

 

[Rob Legat - SBPL]

I agree with Rod. My suspicion is that the situation got far enough up the chain for someone with clout to consider it (such as the CEO), and they didn’t like it one bit. The potential difficulties going forward with an employee who is also perceived as being in competition - whether actually true or not - almost assuredly made it not worth keeping you on.

if I was the employer, I wouldn’t have a bar of it; if for no other reason than if something went wrong in your other business then that stain may also travel across to mine.

 

[jwelchnz]

Hi Rob, so HR sent me the conflict of interest template to fill out which I did and it asked you to send it to the CEO for consideration which I did.

The CEO did not know I had been terminated. My colleague was called by her on Monday asking where I was as she couldn’t get a hold of me or my manager.

I also have an email exchange with another employee who was doing the same as me and was given verbal consent from her manager.

Again the complaint was sent at 11:22. A meeting invite was then sent to 2 people from HR called private meeting at 11:45. Right clicked on the properties of the calendar to see the precise creation date of meeting. Took screen capture of those details. 1:30 sacked.

There also can’t be a breach if your asking for permission? You can’t trade until you have permission. I’ve not traded.

 

[Rob Legat - SBPL]

All anyone can do here is to guess at their reasoning - you're not going to find any definitive answers. Perhaps they wanted to take the easy route of terminating during the probation period, rather than waiting to have to use a breach of contract scenario.

 

[jwelchnz]

It’s so odd. I find it really weird when I never breached my contract. I wrote on my submission “trading would not take place unless granted, in the event it’s not granted I will understand and appreciate the orginisations position and would prefer my current role as I find great enjoyment from it” quoted from the submission

 

[Rod]

Other Employment and Conflicts of Interest
You shall not, for the duration of this Contract, set up or engage in private business or undertake other employment ...

It is possible the manager over-reacted if the CEO was asking for your whereabouts. The decision can be reversed - may be worth a call to the CEO explaining the situation.

Looking at the extract from your contract, your problem is not trading, it is setting up.

There seems little doubt the manager has handled it badly, however on the little I have seen if I was given a choice as to who I could represent for a win at court, I'd go with the employer.

I can certainly construct an argument for your case, it is just that it is likely the employer can show breach of contract.

If you need help at conciliation I can help assist with that process, and I'd be reaching out to the other side in the meantime to see if re-instatement is possible. Sometimes reaching out to the employer is better done without lawyers if there are no entrenched emotional issues to overcome