Your rights: My goodwill has been exploited

BY CHRIS PATTERSON

Q. I work at a private school in the accounts department paying suppliers etc. Until a few months ago there was one person in the office who understood the payroll system. More than once she had to drag herself in to work through illness to do this job, or people would not have been paid. I offered to be trained in this role so I could step in if my colleague was ill or away at short notice - a good idea thought everyone.

After I was trained and became competent in this role my contract was revised to include the clause "you will stand in for Smith [not her real name] in her absence" and I was offered an annual retainer to compensate for being available at short notice.

The problem is that my colleague has booked a holiday during the school holidays and management says I have to cover because it's in my contract. I originally chose to work at the school because it meant I could have school holidays with my children. Can I refuse to work school holidays and not be accused of breaking my contract? I offered to help and now feel my goodwill is being exploited.

A. Talk to the school principal about this. Your goodwill does not need to be exploited and I would be surprised if that was the school's intention. The school will benefit from your initiative to upskill, as it will have the advantage of using your new skill during the school term if your colleague is absent.

It is likely that all you need to do is ask the school to change the clause to reflect that you will stand in only when you are on duty during the term.

Employees and employers cannot unilaterally change the terms and conditions of employment agreements. You will not be in breach of any term of your employment agreement that you did not agree to because contract variations are only enforceable if they are agreed. Explain that you would agree to a variation as long as it does not affect your ability to take school holidays with your children.

If you have already signed the variation then you may be able to have your employment agreement rectified on the basis of a mistake, claiming that you mistakenly believed that by signing the variation that it would not affect your holiday entitlement.

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Q. I am the human resources manager of a [manufacturing] company and have been working through a performance management process with an under-performing sales/accounts manager. I asked the manager whether he thought anything was affecting his performance. He told me that he was stressed out by being performanced managed. He says that the stress is stopping him from lifting his game. The company does not want to have a stress claim made against it. What do I do? It seems to me that we have a Catch-22 situation.

A. You are entitled to expect your staff to perform their jobs to an acceptable level and the law requires you to appropriately performance manage your under-performers. You should not hold off managing your staff simply because they will find your attempts to help them stressful. However, the law also requires your company to have a systematic process for managing workplace stress.

Not all stress is bad and all jobs have an inherent level of stress. The law focuses on eliminating and managing "undue stress". Stress is an imbalance between the situation facing the employee and their perceived ability to cope with it. Undue stress is over and above a safe level for the particular employee.

I suggest that you work with the manager to reach an agreement on how to follow the performance management process to minimise his exposure to undue stress. This might include having a longer period to meet your expectations and provision of some extra support. You have to be seen to be taking reasonable steps to help him to improve and to eliminate undue stress. It is not an easy process, but an important part of getting the results you are looking for.

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* Chris Patterson is a barrister specialising in employment law. Answers are of a general nature only and should not be substituted for specific legal advice.