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NSW Redundancy - Forced to Sign Unfair Deed of Release?

Discussion in 'Employment Law Forum' started by cocky, 30 November 2014.

  1. cocky

    cocky Active Member

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    I took my former employer (post forced redundancy) to Fair Work Commission claiming adverse action taken against myself due to complaints made to former employer and governing bodies about a breech of registered traineeship.

    In Fair Work commission my former employer came in wishing to negotiate. The deal being that I undertake training with them to completion of the certificate I had signed for, however I would not be paid for it. A deed of release was not mentioned and all I had agreed to was to come to an agreement of dates based on company, RTO and my availability.

    My union talked me into taking the deal. To this day, I have not been happy with assistance I have obtained from my union as I did all the work myself and I had only listed them as a representative hoping they would give me some legal assistance as I had found out from the commission that my former employer were bringing in a lawyer to sit in on the Fair Work Australia conference.

    So agreement was made at Fairwork commission via a handshake. Once all parties had agreed to dates of training to commence, I was sent a copy of a deed of release and an indemnity form to sign by my union. I made a complaint that I refused to sign the deed and that it was not fair to my union and he replied with an email stating that he believed the company has been fair in its dealings and that he refused to take the matter back to fairwork. This was about a week before the training was to commence. I had attempted to contact my union several times via email and phone to discuss the deed. I never received a phone call back. With a deadline to have the deed signed attempts to obtain legal advice were limited. I could not afford a lawyer and days for free employment law advice had already passed. In the end I signed the deed under duress just wanting for the matter to be resolved and getting on with my life.

    I am now in a situation where I realise that I'm being trapped by my former employer. I feel the deed is preventing me from doing anything but being set up to fail this traineeship.

    N.B Deed of release effectively says that company will provide the training. I will undertake training. By the 31/12 if I have completed the course successfully or not the company has no further obligations.

    N.B My initial argument with the company to take to Fair Work was that no training had been provided despite me signing on for a registered traineeship. For a period of 18 months (of a 24 month traineeship) I received no training.

    The deed I signed is essentially giving me full qualification I signed for providing I pass. However I feel the amount of knowledge being pumped into me in 4 weeks and then being assessed after this 4 weeks to complete is almost impossible. There is no way that after 4 weeks I can expect me to be fully qualified. Without giving away the occupation..the company is either giving me full qualification in 4 weeks with the knowledge that i will never be employed due to lack of experience, sending me out into the workforce and placing the public, my colleagues and my life at risk or they are setting me up for a fail.

    What can I do? Do I have any employee rights? Please help!

    N.B I feel there is a heavy connection of corruption hence the lack of help from union.
     
  2. Sarah J

    Sarah J Well-Known Member

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    1. Have you tried contacting Fair Work directly?
    2. Were the negotiations between yourself, Fair Work and employer recorded in writing in any form? If so, did it mention anything about a completing date (i.e. how long the training would last for)?
    3. Are you disputing the length of training (4 weeks) or the fact that the company will have no further obligations after this period?
    4. Is the training and certificate governed by a professional body? If so, have you tried contacting this body?
    5. Did your original employment contract mention anything about provision of training? If so, any details about the duration of training, what training you would receive, tests etc?
     
  3. cocky

    cocky Active Member

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    1 and 2. I sent an email to the commissioners secretary on friday for a copy of the notice of discontinuance that the union signed without any prior consultation with me. The secretary told me that the settlement was between my former employer and I and there is no need for a copy of the settlement/agreement to be lodged to the fairwork commission. The secretary advised me that the file was closed once my union lodged the notice of discontinuance. I sent another email to the commissioners secretary today (knowing they will not be in till tomorrow - monday) requesting if there is any possibility of taking this matter back before the commission if I cannot have terms of agreement renegotiated with the former employer. Note no help from union at all. Completion date of training and assessment is 31/12/2014. Whether I pass or not - after this date the employer has no more obligations.

    3. I am disputing the training itself. We have just been pumped through 3 weeks of theory in class. A whole lot of info. There is alot to know in this line of work. Now had I been trained regularly and consistently throughout my 24month traineeship I feel i would be ready to be fully qualified in this occupation as a Cert III. They only trained me to a cert II and from then on for the remainder 18months i got fk all training or feedback on performance. So due to complaints I feel i was forced into redundancy as it is quite clear that the employer did not fulfill their obligations in the traineeship. Now because I have taken them to fairwork they have come out and said that they will provide me with the training however that it will all be done in approx 4-5weeks. It's being rushed. I have been requesting that I get training for the last 12 months, but kept being deceived into believing that they had requested an extension with the NSW traineeship governing body (which was a total lie - PROVEN) and that i would be put through a 2 week theory class so that I may obtain the knowledge and then come out and apply it on the job. I am 3 traineeships who complained about lack of training and forced into redundacy because of the complaints (we believe). One trainee is in the exact same boat as me. The other trainee lives in a diff city and was lead astray by the union to take the matter down the unfair dismissal road. I felt that adverse action/ general protections was exactly i needed to go with. Now what would normally happen should we still be employed is that we would be put into these theory schools. Absorb the knowledge and then come out and apply it on the job. Once all your on job workbooks had been signed then you would be assessed. The trainees still employed have on job workbooks that need to be signed off completed. A key component of the job is driving a certain vehicle. Part of the on job component the current employed trainees are undertaking is 500 hours of driving experience before they are assessed. Now the company has stated that they want me to do all this in 76 hours or by the 31/12. The commencement of the 76hours on job component starts on approx 8/12. After this 76 hours I am to be assessed. If i am not deemed good enough i will be failed. It is just not realistic.

    4. The training and certificate "was" governed by a specific NSW governing body. They had an obligation to oversee the traineeship during the 24months that we had signed up for. We made numerous complaints to former employer and representatives of this governing body who came out in person to have progress papers signed early on. The final straw for the company must of been approx june this year when i called to enquire what exactly i had signed for as i did not receive a training plan which i found out had to be provided to me 11weeks from signing training contract. Nor did i have a copy of the training contract. All i knew was that by the end of this traineeship i would be fully qualified. Upon calling this governing body I was told that i signed up for a cert III and my former employer had reported to them that i had already gained this qualification. I repeatedly told them that no I am only cert II qualified and have not received any training for a long time and keep being promised to undergo theory training only for the date to be pushed back. I also asked if an extension had been obtained by my former employer to the extend the time of the traineeship and they said that it was never issued or requested. A company manager who is my superior sent me a group email in nov or dec 2013 advising me that the company was obtaining extensions from governing body in order for me to complete the traineeship. All trainees bar the 3 that were forced into redundancy received these extensions and have received full qualification to cert III. Upon making that phone call in June or July this year I was told that they (the governing body) would contact my former employer to find out what was going on and that they would call me back. I never received that call back. And on 2 years to the date of signing up for employment and the traineeship I was issued a letter from my former employer advising me that i was being forced into redundancy due to a lack of work. Note I was being rostered under 38 hours a week regularly towards the end of my employment. So were the other 2 trainees forced into redundancy. But that can be rigged. Note that after I had been made redundant i kept in contact with some former colleagues who told me that the company had picked up extra work and that there was now an overabundance of work and everyone was getting overtime every week. Also note that we requested opportunity for relocation however we were told that no such opportunity existed. Note former employer has since relocated former colleagues and hired new crew off the street with no qualifications to be trained up in melbourne. Sorry off topic, but after my meeting for redundancy i contacted governing body and advised them of what had happened. Gov body advised me that as the term of contract (24months) had expired that they had no more obligations. I have repeatedly been in contact with them and before commission conference happened there was a plan for State training to put us in a trainee redundancy type scheme where they would complete the qualification but it would mean we would have to find a job to complete the on job component.

    5. The training contract stipulated that we were to be issued with a copy of the training plan 11 weeks (approx that - im guessing but its around that) after the signing of the training contract. The training contract has the signatures of my former employer, the Registered train org (reps anyways) and myself. I only obtained a copy of the training plan and a copy of the training contract post redundancy. I guess I was a bit complacent and believed that everything would go to plan upon signing the training contract. I didnt bother keeping a copy. I didnt read the fine print upin signing but it basically said that I was suppose to receive a copy of the training plan within 11 weeks of signing the training contract. The training plan pretty much would of told me what my rights were and how the training should of been carried out. For each theory school we attended it was followed by an on the job application and then eventual competency assessment.
     
  4. cocky

    cocky Active Member

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    This is latest response from the commission. Note they have not read or seen the deed.

    Dear Mr
    You are bound by the deed of the release that you signed and it may include not to take further action in relation to the subject matter.
    Please contact your union representative or seek some legal advice.
     
  5. cocky

    cocky Active Member

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    DEED OF RELEASE
    DEED dated
    BETWEEN: Me of [address] Sydney NSW 2000 (Employee)
    AND: ABC Pty Ltd (Company)
    A. The Employee was employed by the ABC Company from 6 August 2012, most recently as a Blah blah Level 2 undertaking a Certificate III in Blah blah
    (together, the Employment).
    B. On 14 August 2014, the ABC Company gave the Employee notice of termination on the grounds of
    redundancy, with effect from 17 August 2014 (Termination).
    C. The Employee has commenced proceedings in the Fair Work Commission numbered
    .........
    D. On 1 October 2014, the Employee and the Company participated in a conference about the
    Proceedings at the Fair Work Commission (Conference).
    E. At the Conference the Employee filed a notice of Discontinuance, discontinuing the proceedings
    (Discontinuance).
    F. The Employee and the Company, without admitting liability, have reached agreement on the
    terms set out in this deed.
    AGREEMENT
    1. The Employee releases the ABC Company, its officers and employees from all claims (whether known
    or unknown and whether arising now or in the future) relating to the matters recited, the
    Employment, the terms of the Employment, the termination of the Employment, the Proceedings
    and the Conference except for claims for workers compensation, and agrees that they may plead
    this deed as a bar to any such claims. In this clause, 'Company' includes related bodies corporate
    of the Company as that term is used in the Corporations Act 2001.
    2. The ABC Company must:
    (a) arrange with the (RTO) Co Pty Ltd for the Employee to undertake the following
    training by 31 December 2014 to obtain a Certificate III in blah blah:
    (i) off job training of blah blah;
    (ii) blah school which includes all components of:
    (A) Blah School, consisting of:
    (I) TLI... -
    (II) TLI... -
    (III) TLI... -
    (IV) TLI... -

    (V) TLI...-
    (B) ...
    (b) provide the Employee by 31 December 2014 with access to the Company's nominated
    service and a Trainer to undertake up to 76 hours of practical training.
    3. The Company accepts no responsibility for any failure by the Employee to gain the required
    competencies or for failing any practical assessment set out in clauses 2(a) and 2(b). If the
    Employee fails to obtain the required competencies or any training required for a Certificate III,
    the Company is not required to provide any additional training or support for the Employee.
    4. The Employee must, by 31 December 2014:
    (a) undertake and complete the training in accordance with clause 2(a);
    (b) complete the Indemnity form before undertaking the practical training set out in
    clause 2(b); and
    (c) undertake and complete the practical training set out in clause 2(b).
    5. The parties must keep this deed and the settlement recorded in it strictly confidential except that
    they may disclose it as required by law; to enforce this deed; to obtain professional legal or
    accounting advice; to obtain advice from the Union; or to the Australian
    Taxation Office.
    6. The Employee will keep confidential any confidential information of which he became aware in
    the course of, or in connection with the Employment except for information which is part of his
    general skill and knowledge.
    7. The Employee warrants that he has read and understood this deed and has received independent
    advice from the Union about the terms and effect of this deed.
    8. The Employee will execute all further documents required by the Company to give effect to this
    deed.
    9. If this deed is marked 'Without Prejudice' then (notwithstanding these words) this deed will
    become an open and binding agreement when it is executed by all parties.
    10. This deed may be executed in any number of counterparts.
    11. This deed is governed by the law applicable in New South Wales.
    EXECUTED as a deed
    Executed by Me in the presence of
    ← ←
    Signature of my witness
    Name of witness (print)

    Signed for ABC Pty Ltd
    by an authorised officer in the presence of

    Signature of officer

    Signature of witness Name of officer (print)

    Name of witness (print) Office held
     
  6. cocky

    cocky Active Member

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    Please also note that whilst we were in the commission that commissioner advised us that if there were any issues with the training that we were entitled to bring matter back before commission
     
  7. Sarah J

    Sarah J Well-Known Member

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    1. No, do not sign the Deed of Release because you would waive any rights of actions you have against the employer
    2. Contact the Fair Work Commission again and ask them to reopen your file because the matter is not resolved
    3. What exactly are the seeking from the Employer? You have an action in breach of contract (your employment agreement) but I doubt Fair Work Commission would be able to help you with that. You will need to go to the tribunal or court. However, first, you need to figure out what exactly you want from the Employer (e.g. do you want compensation for breach of the employment contract and unfair dismissal? Or do you want to force the employer to provide this training for you throughout the normal period of time?)
     
  8. Sarah J

    Sarah J Well-Known Member

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  9. Rod

    Rod Well-Known Member

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    Cocky - I am unclear on exactly what it is that you want.

    As you have signed the deed it is unlikely anyone one can help you unless the conditions of the deed are not fulfilled by the company. It is unlikely you were 'under duress' in a legal sense. Under pressure, anxious, nervous, uncertain, etc almost certainly, but not duress. It can be very confronting dealing with large organisations and even unions that tend to look after their own interests first, yours second.

    Whatever you do, abide by the terms of the deed you signed. You will likely weaken your case (for whatever it is you want) if you break the deed rather than the employer.
     

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