At least it was a shit job.

August 4, 2009 8:35 PM

In Queensland, Australia: I've been laid off from a job for which I've never had a contract. No notice, no redundancy payments offered, etc. I'm screwed, right? I imagine so, but just checking.

I wouldn't even be asking this but for a friend I spoke to last night suggesting I look into it. I never signed a contract at my current place of employ: contract-signing was put off because my employer was an IT start-up, intending on registering a new company name and having me sign a contract once that happened; however the aforementioned registration was put off and put off, and then just never happened (because we're all terrible workers and nothing got done as quickly as it ought to've, etc etc; insert terrible, emotionally manipulative boss here). I can't even provide any evidence of current employment there because in another dodgy move I've been on the books of another family member of the boss's for the past 7 months (doing work primarily for her organisation as well as just odd jobs for the regular boss who was concentrating on another project); apart from these 6 months with this family member, I'd been working where I was for 1.5 years. I was going to be returned to working 100% for the initial gig once work for the family member's organisation was completed; now that it has been, I've been told there's nothing else for me to do, and ta-ta now!

I understand YANAL, or my lawyer, but, sans contract, does employment on its own imply any rights? I've been getting paid holidays and sick pay and superannuation like any fulltime employee, and was assured (when I asked specifically) that I had no need to worry about the economic downturn impacting on my job security, which is why I was prepared to accept this situation in hopes of just remaining employed through this difficult period in the world's financial history.

Now that that's fallen through, is there anything I can expect or appeal to the employer's ethics (heh) to offer at the end of this engagement?

Please, to the snarks out there, no harping on about my stupidity in not having a contract thanks. Unemployed person at the receiving end doing what I can to remain cheery; I don't need taking down to make that more difficult. Assume the lesson is learnt; please be as nice as you'd like people to be to you in the same situation! Thanks!

posted by anonymous to work & money (12 comments total)

Is it worth contacting the Workplace Ombudsman?
posted by Weng at 8:51 PM on August 4

I'd have a quiet, somewhat threatening, word to your ex-boss about how much more shit they'd be in than you'd be in were your extraordinary 'employment' situation made known to, say, the ATO. (related: have you received group certificates?)

That said, if they've paid Super, you might want to check with the fund admin what representations your former employer has made with regard to your employment.

With each of these approaches, I'd have a word with a solicitor first.
posted by pompomtom at 8:51 PM on August 4 [1 favorite has favorites]

Were you yourself paying into a national pension plan? What about health insurance or unemployment insurance? Did they deduct income tax from your paycheque?

If you can answer "yes" to any one of these questions, you are probably eligible for some sort of severance (this is Australia, a country with a reputation for strong workers' rights). More importantly, a contract becomes a moot point. If you can prove that you worked for your employer (in this case, the person who signed your cheques) for a certain period at full-time status, the issue of a contract becomes moot.

If you weren't paying any deductions, you would most likely be regarded as a contractor working on an hourly basis. However, if you were working there full-time, the Australian equivalent of the tax collector may determine that you were a bona fide employee, and not a contractor (you worked there full time, they provided working space for you with all the trimmings like phones and computers, etc).

It's probably worth talking to your local employment standards office.

Anyway, just to manage your expectations, after working there for seven months, you are not going to get a hell of a lot of severance pay, maybe a month's worth at the most.
posted by KokuRyu at 8:55 PM on August 4

KokuRyu for the win - if a contractor can make a case that they are treated just like an employee, the law will treat them that way regarding severance etc.

Now, this could potentially involve potential solicitor shenanigans, and def much headache and back and forth for you. You may not want to get mired in so much negativity when you're in a kind of fragile state.

The other thing is, what kind of arrangement was the sister company employing you on? You may be entitled to severance from the job they said you had.

You're definitely going in with a good attitude - it was a shit job, and you can get one that has you working with better people. We're doing so much better than UK/US. It's a really tough break, but could lead to more happiness. :)
posted by smoke at 10:18 PM on August 4

IANAL, however having recently flicked through some of this stuff (check out the federal gov's unfair dismissal guff), the bottom line is you've probably got options. Particularly if the organisation does not classify as a "small business". Even if they _are_ a small business, if you've been working for them for more than 12 months (which it's unclear from your post) then you could qualify for an "unfair dismissal" claim. But you've got to act fast if you're going to do it (within weeks of sacking). It's worth persuing, too -- best case is you get paid 6 months in lieu.

Start with proof of employment -- do you have payslips? As others have said, regular super payments? I don't know, but even bank statements showing regular payments from the same account might do it.

Emails? Other documentation? Someone else at the organisation?

The best thing, possibly, is that the small-business unfair dismissal process is designed to be (and is) lawyer-free. Read up (I started at the QLD wageline website, and followed linkies from there) cos, if nothing else, you may be covered by a QLD award of some description (which cover employees even in lieu of a contract).
posted by coriolisdave at 10:27 PM on August 4

I think you're in a both a good and bad way on this.

The bad:
* Without paperwork you have no proof of employment. This will be a major obstacle in any kind of resolution in your favour.
* From the sound of it, you've been working for a 'Small Business'. Small Business do not have the same redundancy as +100 employee companies, and have a lot more leeway in firing people without notice for any reason.
* One wonders just how much money the company has to pay you out even if things go your way, if they're laying people off and working off the books. You can't get blood out of a stone, so large payments are probably off the table here [to mix metaphors]. Especially once you start talking about lawyer fees, which will likely gobble up any payout you may get.

The good:
* As others have stated, you may be able to prove employment through payslips, super-annuation payments, annual leave statements. If you have none of these, you can move this point to the "the bad" column.
* The ATO loves this shit. If you've been off the books [or someone else's books], likelihood is that there has been some payroll tax shennanigans going on. For instance, your employer is obliged to make super contributions on your behalf. If they haven't been happening [and you can prove employement], there's an illegal activity right there. I'd be making a note to contact them ASAP.
* You have just learnt a valuable lesson; sign a contract. That's gotta be worth something, right?

I wish you luck, but I don't think you'll find a lot of happiness at the bottom of this particular well. I think you'd get more benefit putting your energy into finding new employment, rather than entering the time-and-energy-suck that is the legal system.
posted by Neale at 10:56 PM on August 4

From www.wageline.qld.gov.au

Employers are not required to observe redundancy and/or severance benefits provisions in the following instances:

* Small business employers are generally exempt from the redundancy section, where they employ employees who work a total of fewer than 550 hours on average per week, excluding overtime, Monday to Sunday. The total of 550 hours per week is an average calculated over the previous 12 months;

550hrs per week equals approximately 15 full time employees. So businesses that employ less folk than that are essentially exempt from paying redundancy.

If your employer employs people for more than 550 hrs per week, you have a leg to stand on. If they don't, you can appeal to their conscience, ethics, whatever, but you don't have a legal right to redundancy.
posted by Kerasia at 11:10 PM on August 4

Sans contract you may be covered by common law contract.

That said, I doubt your employer is in any position to withstand any kind of scrutiny from e.g. the tax man, if they're pulling this on a regular basis.
posted by rodgerd at 11:22 PM on August 4 [1 favorite has favorites]

As well as the Commonwealth Ombudsman, Queensland has its own version.

Re proof of employment, do you have payslips? Can you show bank statements with regular payments from them to your account? Did they give you a group certificate at the end of every financial year? Did you retain a letter of offer? An email about how they'd sign you as soon as they changed their company name? Best of luck sorting it out.
posted by t0astie at 12:31 AM on August 5

There's legalities and realities. Ask for a Separation Certificate so you can claim the dole. The cute thing about this is you have post-employment proof that they employed you. Also ring these guys, as Weng listed above. We had an employment issue, and they were very friendly (but ultimately not helpful). And that's where the realities bit comes in. If your employer is going down the toilet, the likelihood of you getting anything off them is very low. It's really important to find out if they paid tax on your behalf, because you're liable if they haven't (yeah, awesome, I know, ask me sometime about the $15 000 tax debt we had to pay off).

Common law might imply an oral contract, but if you have no money to hire a lawyer and your employer is going broke, the only people to win out of this one is the legal system.

Anyway, minimum you want: Employment Separation Certificate, or you might have trouble with Centrelink. Good luck!
posted by b33j at 12:32 AM on August 5

If you can prove continuous employment you may want to engage an industrial advocate or employment lawyer. They are all rather busy right now but (in Queensland thanks to the mining industry) but a job is a job and YES you have rights and mutual obligations. Written contract or no written contract.

If you are just a bunch of mates who tried to be the next Facebook crew... maybe not.
posted by evil_esto at 4:05 AM on August 5

* The ATO loves this shit. If you've been off the books [or someone else's books], likelihood is that there has been some payroll tax shennanigans going on. For instance, your employer is obliged to make super contributions on your behalf. If they haven't been happening [and you can prove employement], there's an illegal activity right there. I'd be making a note to contact them ASAP.

QFT. They may be willing to dick you around, but no small business in its right mind fucks with the tax department.
posted by Jilder at 8:01 AM on August 5