Contract terminated help

[diesel]

well got paid for all weeks worked today. Only thing that i outstanding is the issue of getting my notice period paid.

Just wondering a lesson learned from this event is that i would not sign and agree to such terms again. Has anyone had any success in ever getting T&Cs changed to suit?

[mavster07]

Surely the highlighted part of the contract blows the OP out of hte water?

Interesting, but couldn't you argue here that the termination clauses conflict with each other ?

Bottom line is that if a contract is signed, the only way it can be terminated is with due notice unless there was some sort of breach on the part of the contractor. And in any case, the Client has to issue notice to the agency who must then issue notice to the Contractor. So the demand for explanation of termination goes with the Agency and its them who must justify it. They can prattle on all they like about having to check with the client and find out this, that or the other - but thats irrelevant at law. Its their contract with you and they are obligated to ensure they fulfill their side of it.

The other thing here is that if the Client has done this before, get the contractor who was the victim to provide a statutory declaration as to the facts in his/her case. Then hold this up to the Agency (or court even) and basically say that as the Client has a history of doing this, it can be argued that they have entered into the contract 'in bad faith'. Thats a whole different kettle of fish then because the basis upon which you could sue them is for breach of contract, and that can lead to damages etc. Even rattling the cage with this sort of thing will invoke action by the Agency.

I'd stand the ground here and demand payment. Its not your problem that the contract was terminated on Day 1. You showed 'good faith', so should they.

Finally, at the end of the day its a contract. We've all had agencies do this (and client's for that matter) and if you don't stand your ground then the contract is worthless. When put under scrutiny in court, the courts will 99.99% of the time look to enforce the contract, and they will demand of the party who terminated to demonstrate why they entered into the contract and then did not fulfill it. Its nothing to do with being an IT contractor and everything to do with basic contract law.

Further advice is to consult with APSCO or REC (whichever one the agency is with) and lodge a complaint with them (and tell the agency you are doing this) suggesting that the agency has not (or is not now) fulfilling their duty of care under the code of conduct they are bound to, which is to conduct the contract fairly and according to the law. Of course, either way you burn your bridges with the agency but if the agency is so lazy as to not ensure your interests are represented, then would you want to contract through them again anyway ?

[mavster07]

Oooh, a veiled threat to up the ante. Quite a clever comeback by the agency, I must say. Now, you have to ask (and be honest with yourself), do you think there was any thing that could be construed as poor workmanship? I'm not suggesting there is, but you have to have a hard think about if you could argue your case in front of a judge.

Was the contract to deliver a specific piece of work (price work) or to give X days of consultancy on a daily rate? Price work, you have a tough one to prove and if the work could be proved to be defective then you would legally have to fix it (though you have to consider if there was scope creep or an inadequately scoped project). X days consultancy is a bit easier, you turn up and do the work the question is was the quality of the work delivered of merchantable quality, so to speak.

Correcting any defects for free is only really viable for a fixed price deliverable, otherwise, anything that you touched that has deficiencies could potentially come back to you to be fixed.



No it isn't, it will be decided by a judge in a court after consideration of contract law.

I would be inclined to demand a detailed explanation of what was deficient and how the propose that it be rectified. If they can't provide that (they may just want to get on with their business) then they have to pay up.

You could also consider taking it to court and forcing them to file a defence/counter claim and see what happens. They may back down or they may fight it. If they fight they would have to file a detailed defence and they may not be willing to invest this much time. There is a risk that they could counter claim, do you have PI insurance? However, you can (quietly and not in writing) point out to them that your company has no assets so even if they got a judgement against your LTD, they couldn't enforce it anyway.

Personally, I'd take it to court just for the experience. Win or lose, I'd take it as a lesson on how to deal with this situation in future though there is possibly something to be said for walking away and avoiding all the stress. I've learned to pick my fights carefully, don't start it unless you are determined to win it.

Anyone here ever actually had one go to court?

I agree on this. The agency's response is clearly one designed to sabre rattle without actually providing any substance. The bottom line is that if they were not happy with the work, they are obligated - by law and typically within the contract (if specified) - to convene a meeting and state the reasons and offer you the opportunity to remedy the defect.

Basically what they are saying in their response is that you've breached your contract with fauly workmanship but not actually issued a breach notice, which is typically what should be done. As I said earlier, if you took this to court then you'd likely find that the court would look to enforce the contract being upheld, meaning that it wasn't justifiably terminated.

Clauses that state the client can terminate for any reason are just a load of old ***** because they are a catch-all to give the client the chance to back out at any time without a good reason. However, many such clauses 'could' be argued to be 'unfair terms' or 'contrary to good faith' under contract law. Thats how bad some contracts are in the IT industry. You could certainly make a good case on it simply on the basis that your repeated attempts to demand explanations at the time of termination and after led to yet more reasons which don't add up and don't align to actual events (especially if the client did not verbally or in writing inform you or the agent when they identified the poor workmanship - a 'reasonable' thing to expect). Added to that your comment that the client actually has a history of doing this, and you have an excellent case.


I'd certainly take legal action on it on several fronts as its just plain dodgy.


The way to get around these in contracts is to actually word into the contract that termination due to defective workmanship or 'any other reason' must be agreed between the Client, the Agency and the Contractor (Company) such that all parties agreed the contract cannot continue. At that time you have recourse to demand written explanations or external scrutiny of the work to actually make that determination. I had one agency 'try it on' recently with such a clause and I worded that in on the basis that the notice period would become 'mute' if the client could simply terminate for any old reason rather than one relating to negligence or incompetence etc and that all times it had to be mutually agreed and myself afforded the right to remedy the defect. Only then can you walk out on your terms and stop clients just pulling the plug when you've invested time and money into executing the contract.

I'd fight the case - I'm sure you'll win. Just persist at it.