Published on Tuesday 13, March 2018
IMCL helps Ashika through our fortnightly employment law clinic
Employment law cases have surfaced as a rising issue in our community, and the addition of the clinic through this pro bono partnership enables IMCL to deliver a one-stop shop for people experiencing legal problems.
IMCL has been able to assist clients like Ashika, who was facing disadvantage, both professionally and financially, from her employer’s actions.
Unlike many of our vulnerable clients, Ashika knew her employment rights before she met us. Even so, this knowledge wasn’t enough to protect her against workplace exploitation.
Ashika was a professional working in a team of practitioners. She started working part-time and things were going well. She had negotiated a strong contract, ensuring that she was paid the award rate, if not more when the practice was thriving.
Twelve months into her job her employer, Howard, proposed a different arrangement. Howard wanted her to become an independent contractor rather than an employee. After seeking advice from an accountant, Ashika decided that becoming an independent contractor wasn’t the best option for her and communicated this to Howard.
Disregarding this, Howard began paying her as if she was an independent contractor and not an employee. Among other things, this meant that Ashika was no longer accruing leave or having superannuation paid into her nominated super account. Howard also told Ashika that if she did not agree to this new arrangement - despite her express opposition - she would need to find somewhere else to work. To pressure her to make the shift in her employment status, he started to make false accusations about her performance.
When Ashika refused to become an independent contractor Howard terminated her employment with less than the required four weeks’ notice. By the end of this period Ashika had not been paid for her final days of work or her accrued annual leave. Instead, she was issued with an invoice suggesting she owed Howard thousands of dollars for her use of the practice’s facilities and equipment.
At this point, Ashika couldn’t deal with the matter alone. She knew Howard was breaking the law, but she was powerless to stop it. She knew she needed legal help.
“Without the lawyers’ support, I wouldn’t have been brave enough to take steps against my employer,” she reflects. “I wasn’t able to get private assistance and would have had to do it alone. Without fully understanding the law, I wouldn’t have achieved the same outcome.”
IMCL stepped in and helped Ashika take action against Howard by arguing that he had breached protections under the Fair Work Act and unfairly dismissed her. IMCL also argued that as Ashika was an employee, and not an independent contractor, she was entitled to a four week notice period along with an annual leave payout, neither of which had been received.
“From the get go I felt that I could trust IMCL to do the right thing by me, right from the kind and warm reception staff,” Ashika explains.
“Because the center is a community service, working in partnership with pro bono lawyers, I knew they would act in my best interests.”
Working closely with Ashika, IMCL negotiated a settlement with Howard to make sure she received what she was entitled to. This included recovered wages and super, and also compensation for the hurt, humiliation and distress she had suffered. It was much more than she had ever expected. Not only did Ashika benefit from this legal outcome, so too did her colleagues.
“There were others affected by this behavior in my workplace, so I was able to make a stand for everyone. Without the lawyers’ belief in me, without them listening to me, I wouldn’t have been able to stand up for myself or anyone else.”
By working with Ashika and securing an outcome for her, IMCL sent a clear message to her employer that his behavior was unlawful and in doing so, protected the legal rights of many other employees.
Since resolving her legal problem, Ashika’s friends say that she’s become an even stronger person from the experience. And Ashika agrees. “I’ve learnt a lot about the law from speaking to the lawyers and I feel proud about having stood up to bullies who were doing the wrong thing,” she explains.
The employment law clinic runs fortnightly on Fridays between 9–11 (by appointment).
Please contact IMCL on 9328 1885.