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Thread: Probation vs Fixed term contract

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    Probation vs Fixed term contract

    Hi

    I hope I am posting in the correct forum. I need some advice as I am very anxious regarding a new employment situation.

    I have recently obtained an offer from a company to join them. Initially they had offered a salary with benefits etc all stipulated and the agreement was that for 6 months I would be on probation and at the end of the 6 months, my fixed salary would change a little and a commission scheme would kick in. The idea was to sit down after 6 months and set a commission percentage and also agree on realistic sales targets. The position is that of Marketing manager. The offer also stipulated that my performance would be objectively evaluated regularly and “This contract of employment may be terminated by either party to the contract providing to the other party to the contract 1 month written notice of intention to terminate, for any reason recognised in law as being sufficient. The employer may terminate this contract of employment at any time during the duration of the contract, for reasons of the incapacity or misconduct of the employee, or the operational requirements of the employer. Should this contract be terminated for any of the above reasons, the employee agrees that he shall have no claim against the employer for any outstanding benefit, including remuneration, to the end of the contract.”



    They have now come back to me and said that they can only do this with a Fixed term contract for the first 6 months and then we will evaluate as initially agreed and set parameters going forward.



    My question is what do you think of this? Is it fair? What do they have to gain by suddenly offering a Fixed term contract which stipulates an end date? Considering I was going to be on 6 months probation is this a better deal for me or worse?



    Thank you for your time

  2. #2
    Site Caretaker Dave A's Avatar
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    They probably got windy that some aspects of that first proposal might not fly i.t.o. labour legislation.

    Is it a start-up? The unwillingness to agree comm % and targets up front is... curious.
    The trouble with opportunity is it normally comes dressed up as work.

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    Not a start up. They have been up and running for a few years now. They want me to be the marketing manager and take them tot he next level. I have submitted proposals and been through various interviews etc. All was negotiated to meet both our needs and an offer made, then suddenly this. The idea is a fixed salary for 6 months and from there commission percentages and sales targets to be set. However, this fixed contract idea could result in me placing systems, networking and bringing in loyal customers only to then be told thanks and your contract is up. At which stage they get someone cheaper to run with the solid systems I have installed.

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    Site Caretaker Dave A's Avatar
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    Based on that, it would seem in your best interests to decline their 6 month fixed contract offer. Maybe tell them three years and get beaten down to two?

    Hey, you're in marketing - selling yourself and negotiating your own contract should be a breeze
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Mmmmm!!! Where to begin. Your probation is possibly a better bet. Let me give you a quick summary. When under probation the employment realtionship can only be terminated as per the normal procedures (or death). However when under probation, the onus on the employer is reduced as the very nature of probation is to see how things work. Yes after months 5, once you have done all the systems, the owner might invoke the, things just not working out and off you go. Unless he had valid reasons, and the onus of proof is on him, you will win the case. Furthermore even though on probation, and the reduced onus, the employer would need to be following the procedures - warnings, counselling etc, etc (which will give you a heads up) The alw does not govern what a probation period can be, it says reasonable(this is a code of good practice and not a law) reasonable is normally 3 months. A fixed term contract on the other hand can justiviable come to an end at the end of the 6 months. As per the wording it can be determined as per normal discipline routes prior to the final date, but the owner would be well within his rights not to renew the employment relationship at the end of 6 months. the law does make allowance for a dismissal occurring where an employee expected a contract to be renewed and it is not - however on a first term, you will be hard pressed to prove the expectation. hope this helps. Feel free to ask more, just wanted to keep it brief

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    Diamond Member wynn's Avatar
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    Insert a clause that, 'Should they terminate your employment before you become a permanent staff member, you will be entitled to any commissions on any clients introduced by you during the said probationary period, payable for the next five years'
    That should cover you??
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