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noisybaby 
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 Topic: Can he be fired for this? pls help
Posted: 12 January 2010 at 2:43pm |
I need some advice please regarding an employer.
My husband was diagnosed with a unoperable brain tumour August 09. He had radiotherapy Oct-Nov. During that time he had to cut back his hours to have his treatment but still managed to work 8 to 2-2-30 most days. His doctors were amazed he managed to work right through his treatment and was told to have 2 weeks off after his treatment had finished (he only took three days off) to rest and recover.
Any how. yesterday he started back at work after the xmas hols and said to his boss he was still not 100% but would try and work 8hrs a day from now on. His boss went off at him and said I need someone who is going to work 40hrs a week not part time bla bla bla and pretty much told him if he can't do that he would need to go.
My question is can he fire him for this even though when my husband signed up to work there it was on a part time contract so he is theoretically doing the hours he is hired to do. He has kept his boss up to date with everyhting through out his treatment and has worked his arse off when he was there.
We don't need anymore crap on our plate at the mo and this is really getting my husband down. Any help/advice would be most appreciated.
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Kazzle
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Posted: 12 January 2010 at 3:00pm |
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I would think the answer to that is NO, as he is only contracted to work part time hours.
easiest way to find out is to contact the employment people and ask them
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weegee
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Posted: 12 January 2010 at 3:01pm |
 sounds like you have both been through a rough patch!
I can't comment without knowing the specifics of your DH's employment agreement, but thought this page on the Department of Labour website might be helpful for you.
Good luck!
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jazzy
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Posted: 12 January 2010 at 3:10pm |
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So sorry to hear you are having a tough time, last thing you need is this.
I would contact a employment relations lawyer, it costs nothing to have a chat on the phone & they can advise you your rights & if he is fired over this you may have a very good unfair dismissal claim.
All the beat.
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cuppatea
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Posted: 12 January 2010 at 3:11pm |
I would think if he was working his contracted hours he should be fine. However the best thing to do is get professional advice and either speaking to someone at department of labour or going to citizens advice would be a good place to start.
Really does sound like you don't need anymore issues. Some employers are such toss pots, a lady I worked with got really ill with a virus that got into her heart and left her with a murmur and other issues, our boss made her life so difficult that in the end she quit, she was a real company girl up until then as well. I actually quit the following week and her treatment was part of my reason for leaving. (It was a company of 13 including him and his wife and 4 of us quit in one fortnight)
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jaz
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Posted: 12 January 2010 at 3:35pm |
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Firstly, sorry to hear about your husbands tumor. It must be very difficult on you all.
Regarding hours:
If he was hired to work full time then they are within their rights to expect him to return to full time work within a reasonable time period and can terminate his employment if he is unable to do this.
If he was hired to work part time and he is fulfilling these hours then there should be no problem.
If the business has changed their needs and now require someone to work full time hours then they are within their rights to restructure and look for a full time person if your husband is unable to do these hours.
Was he working full time before he got sick? What does the agreement say regarding hours of work?
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noisybaby
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Posted: 12 January 2010 at 3:51pm |
He was working fulltime (40hours) up till he was diagnosed but his contract was never changed to fulltime. I think his contract only stated 24 hours or 30 hours. I'll have to find his contract and have a read up for you.
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MindyW
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Posted: 12 January 2010 at 3:52pm |
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His boss sounds like a complete ass! I really sorry your DH and you have to go through that! I would contact an employment lawyer and seek professional advice, all the very best!
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GuestGuest
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Posted: 12 January 2010 at 4:19pm |
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Because he was working fulltime up till his diagnosis I assume there is a need for a full-timer and his part-time hours won't be enough for the company. That is where it gets tricky because the fact that his contract says part-time is in a way irrelevant if both of the parties had an "understanding" that his role had increased to fulltime.
I would definitely recommend getting an employment lawyer involved. Good Luck!
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KiwiL
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Posted: 12 January 2010 at 4:44pm |
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Jaz is right - she's put very well what I was going to say.
If he is on a part time contract, and maintain those hours, they would have to restructure and make him redundant.
But are they being a reasonable employer? I think not. Horrible horrible boss. What a nasty thing to do. Some people just have no empathy.
I hope your DH is ok. xx
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johndsmith
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Posted: 12 January 2010 at 4:57pm |
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what type of job is it? are there any vacancies available with another employer?
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Hunnybunny
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Posted: 12 January 2010 at 5:18pm |
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I'll just put my experience here:
My Mum got super sick a couple of years ago- infection and it travelled to her heart etc etc big big dramas, Gore hospital then Christchurch then Dunedin. Cardiologists in NZ had no idea so were asking cardiologists overseas, and I'm pretty sure shes now a case study...
But anyways, cos she was off work sick in hospital etc, her boss got nasty. It was a HUGE company in NZ (Still is) and they managed to fire her through a clause called "frustration of contract". All legit, all legal, they eventually fired her after they said she had to be back at work on *this* date and she said she couldn't as she was having open heart surgery the day before.
BUT: if you husband is only contracted part time, was working more hours before he got sick, and is now only doing his contracted hours (assuming his contract never changed) they really don't have much of a leg to stand on. It will mean a restructure and redundancy which is a long, difficult process. If your husbands boss tries to get rid of him it does look like you will have a good claim for unfair dismissal.
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noisybaby
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Posted: 12 January 2010 at 5:26pm |
Thanks guys for your advice. Its just such a difficult time and I just wanted to make sure I knew what legs we have to stand on incase it happens. Its not as if I could find a job and work if he gets fired and with his current condition we aren't sure who would hire him. I hate seeing him so worked up over this coz it doesn't help with his recovery.
Man life can really bite you in the ar#e sometimes.
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jaz
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Posted: 12 January 2010 at 8:26pm |
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I've worked in HR for years and trust me restructing is very fast. You can go from the first meeting to a termination letter in about a week and there is no need to be a fair and reasonable employer in terms of health as long as you follow the correct procedure which is to consult with the employee before making any changes. Restructuing is all about the business needs and it is very easy to justify a genuine need for changes in staffing. Too much work on, too little work on, need for different skill sets etc.
Terminating someone on the grounds of medical incapacity is a very long and drawn out process however. Frustration is quite different again, it is when you hire someone to do a job then something happens and they are unable to do that job. It is usually used when you secure a contract to provide services, hire staff to do the work, then subsequently lose that contract, therefore no work. Again, redundancy is faster and easier in this instance and it isn't usually used when the person is physically no longer able to do the work.
If he worked full time for quite some period before his illness they could argue that this had become the standard hours of work. If it worked the other way around, he was working full time for several months and out of the blue they cut his hours back to the employment agreement he could take this stand too.
My advise would be for him to check his agreement, state he wants to revert back to the hours in his agreement and explain that he is prepared to be flexible about his hours but needs some time to build them up. If they are flat out and need additional resource they may be able to take on someone on a casual basis in the interim. That all depends on how specialised his job is though.
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HuntersMama
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Posted: 13 January 2010 at 3:11pm |
I THINK if hes fit to perform his normal work (hours and duties) he should be OK but if he cannot then they may be some grounds in getting rid of him? Ive never dealt with this in an illness/medical situation, only where someone has had an accident resulting in a long term disability.
Hope it all works out for you guys
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lilfatty
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Posted: 13 January 2010 at 3:23pm |
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Yep as Jaz said .. I know it sucks for you, but it would also suck to be the boss and be short staffed and be unable to hire someone to fill those hours because you already have someone doing that role (IYKWIM).
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noisybaby
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Posted: 13 January 2010 at 8:59pm |
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Today he had a talk with his boss and its all sorted.
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cuppatea
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Posted: 13 January 2010 at 10:07pm |
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yay so pleased it is all sorted, phew now you can relax a bit.
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jaz
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Posted: 14 January 2010 at 8:57am |
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That is great to hear.
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jazzy
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Posted: 14 January 2010 at 9:10am |
noisybaby, good to hear hope the year turns out well for you 
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Can he be fired for this? pls help
