Reply to: 3 months into 6 month gig, no right to issue notice

[unixman]

I once had a contract where another contractor and me both had serious problems with the same permie, who we had to work with a lot of the time. It was down to his personal conduct.

We discussed it with the agent, who discussed it with the client's manager and (I was told) the chap in question. His conduct didn't improve, however. A few weeks later, I politely declined the three-month renewal (giving some bland reason, but the agent and client probably guessed the real reason).

My advice with people being silly is to treat it like "water of a ducks back" - up to a point. The chap in question was *well* beyond that point for a significant amount of the time, and as my warchest allowed it, I walked. As I saw it, he was a problem and he was the client's problem, not mine. Three months on the bench was a relief, frankly.

So:
- it helps enormously if other people also have problems with the person. Also reduces your stress as you can discuss it with them.
- don't put up with unbearable stress.
- Leave, but not under a cloud.

[Jubber]

I don't know any "boss" (please note inverted commas) who would want to keep someone on a project who didn't want to be there. Go and talk to the decision maker - I'm sure you'll be out quite quickly.

[northernladuk]

I think you're confused about the meaning of lack of MoO. It relates to the lack of obligation to offer work (on the client side) or to accept work (by YourCo) that is outside of the contractual terms, including work that is outside of the scope of an agreed schedule of work, such as after an agreed schedule of work (or the contract) has been completed. It certainly does not give carte blanche to refuse the delivery of work to which YourCo is contractually obligated (e.g. via a schedule of work), although you can certainly substitute or subcontract if the contractual terms allow that or end the contract on terms that are prescribed in the contract.

I'd agree with this as well...

[northernladuk]

I don't believe that a client usually uses an MoO clause - they normally have a clause which specifically says "no work, no pay" (separate from any MoO clause) or one which allows for immediate termination.

I believe that if you have accepted the work, then you have an obligation to do it. Having accepted the work, I don't think you can turn round and say "changed my mind, I'm not doing it and there's nothing you can do about it".

But since there is no test case, you could take the risk that you'll be OK and invoke the clause.

I would agree with this...

I don't think that every days work is down to MoO.. It's just client supplier business and the differences between the two parties. It isn't a level playing field where what he does is good for you. One has the cash, the other wants the cash and has to do something for it. That is going to change the mechanics considerably and the balance of power/dependency/control etc shift because of it. The expectations from both parties are different as well. I think this relationship has to be considered instead of just saying MoO's good for one so it's good for the other. What exactly these mechanics are called I don't know but I don't think it should come under MoO....

but...

As TF says it's never been tested in court which could speak volumes. I am sure there are many many instances of a client breaking what BB thinks is MoO but not one case in court???

You must have strange contracts if there's a specific clause that says 'no work, no pay'!

Every contract I have had says I don't get paid unless I have a signed timesheet. I don't work, I don't have a timesheet, I don't get paid. Isn't that the same?

[jamesbrown]

Obviously Im not a lawyer but I cant stand this idea that's gained traction here recently.

MOO is not limited to the client. One or two people seem to be of the opinion its fine for the client to use MOO when they want to get rid of a contractor mid contract and not pay notice but is of limited use to the contractor.

MOO is effective for both parties for the duration of the contract. I have never found anything in any of my contracts that states, indicates or suggests I could only use MOO at renewal time.

If a client can use MOO at anytime during a contract, unless your contract says different, its my opinion you can as the contractor also use it at any time if \ when you want to get out of a contract.

That said, Im not aware of any contractor using MOO and until there's a test case, there is no definitive answer so, use it if you feel the need.

I think you're confused about the meaning of lack of MoO. It relates to the lack of obligation to offer work (on the client side) or to accept work (by YourCo) that is outside of the contractual terms, including work that is outside of the scope of an agreed schedule of work, such as after an agreed schedule of work (or the contract) has been completed. It certainly does not give carte blanche to refuse the delivery of work to which YourCo is contractually obligated (e.g. via a schedule of work), although you can certainly substitute or subcontract if the contractual terms allow that or end the contract on terms that are prescribed in the contract.

[billybiro]

(s)he dumped you? you shouldn't fraternise with the staff!!

I had a situation where a member of staff (business owner of a project) was driving me insane (on a professional level) and came close to quitting a gig (which had a five day either way notice period incidentally); I took a constructive sickie for a couple of days, got pissed with a mate, decided "**** you, this application will get finished" and generally got my head straight and manned the **** up. The application is still live, extensively used by the client, the gig was worth in excess of another hundred thou, and there is certainly potential for revisiting the application for a version 2 with a different business owner.

Step back and rationalise, is what I am saying.

And whilst all of the above is true, just for balance I'll add that sometimes it's important to remember that life is short, money isn't everything, and spending (approx.) 1/3rd of your life in "work", it has to be something you can at least "easily put up with" if not outright enjoy.

Forcing yourself to stay in an untenable situation that you genuinely despise just because you get to invoice for that time can be a pyrrhic victory.

[TheFaQQer]

What are you talking about? Of course clients use MOO! They may not state directly under para 5.a.iv of sub section 4, the MOO clause states we do not have to give you work blah, blah, blah but, that's what they are using when they say 'dont come in tomorrow'!

You must have strange contracts if there's a specific clause that says 'no work, no pay'!

Every contract I've had has had

- no work, no pay (or a variation)
- right of immediate termination under certain circumstances
- separate MoO clause

I can't comment on whether they are strange or not compared to anyone else, but they are the norm to me. The only time a client has terminated, it was using the right of immediate termination clause not anything else.

[BolshieBastard]

I don't believe that a client usually uses an MoO clause - they normally have a clause which specifically says "no work, no pay" (separate from any MoO clause) or one which allows for immediate termination.

I believe that if you have accepted the work, then you have an obligation to do it. Having accepted the work, I don't think you can turn round and say "changed my mind, I'm not doing it and there's nothing you can do about it".

But since there is no test case, you could take the risk that you'll be OK and invoke the clause.

What are you talking about? Of course clients use MOO! They may not state directly under para 5.a.iv of sub section 4, the MOO clause states we do not have to give you work blah, blah, blah but, that's what they are using when they say 'dont come in tomorrow'!

You must have strange contracts if there's a specific clause that says 'no work, no pay'!

[AMH]

whats the working relationship with the permy? do you work under them, do they work under you.
Do you need to interact with that person at all or can you go via someone else, etc.

[TheFaQQer]

Obviously Im not a lawyer but I cant stand this idea that's gained traction here recently.

MOO is not limited to the client. One or two people seem to be of the opinion its fine for the client to use MOO when they want to get rid of a contractor mid contract and not pay notice but is of limited use to the contractor.

MOO is effective for both parties for the duration of the contract. I have never found anything in any of my contracts that states, indicates or suggests I could only use MOO at renewal time.

If a client can use MOO at anytime during a contract, unless your contract says different, its my opinion you can as the contractor also use it at any time if \ when you want to get out of a contract.

That said, Im not aware of any contractor using MOO and until there's a test case, there is no definitive answer so, use it if you feel the need.

I don't believe that a client usually uses an MoO clause - they normally have a clause which specifically says "no work, no pay" (separate from any MoO clause) or one which allows for immediate termination.

I believe that if you have accepted the work, then you have an obligation to do it. Having accepted the work, I don't think you can turn round and say "changed my mind, I'm not doing it and there's nothing you can do about it".

But since there is no test case, you could take the risk that you'll be OK and invoke the clause.

[BolshieBastard]

Which is fine if you haven't already agreed to do the work. If they have offered work (eg. "manage the project for the next three months" and you have accepted it, if you turn round and say "I'm not doing it" you may well find yourself in a difficult situation legally.

Good point. MOO doesn't mean you can at any moment say "f*** you, I'm off".

Obviously Im not a lawyer but I cant stand this idea that's gained traction here recently.

MOO is not limited to the client. One or two people seem to be of the opinion its fine for the client to use MOO when they want to get rid of a contractor mid contract and not pay notice but is of limited use to the contractor.

MOO is effective for both parties for the duration of the contract. I have never found anything in any of my contracts that states, indicates or suggests I could only use MOO at renewal time.

If a client can use MOO at anytime during a contract, unless your contract says different, its my opinion you can as the contractor also use it at any time if \ when you want to get out of a contract.

That said, Im not aware of any contractor using MOO and until there's a test case, there is no definitive answer so, use it if you feel the need.

[SueEllen]

Personal, irreconcilable differences with a key permie see me wanting out of my lengthy contract.

Is anyone else pissed off with this permie?

Generally if you think someone is a b*llend then there are a few other people who do as well.

One of the job of being a contractor is managing idiots like this.

[Bacchus]

Personal, irreconcilable differences with a key permie

(s)he dumped you? you shouldn't fraternise with the staff!!

I had a situation where a member of staff (business owner of a project) was driving me insane (on a professional level) and came close to quitting a gig (which had a five day either way notice period incidentally); I took a constructive sickie for a couple of days, got pissed with a mate, decided "**** you, this application will get finished" and generally got my head straight and manned the **** up. The application is still live, extensively used by the client, the gig was worth in excess of another hundred thou, and there is certainly potential for revisiting the application for a version 2 with a different business owner.

Step back and rationalise, is what I am saying.

[Dactylion]

The allegorical story I always think of is:
Con: I would like to discuss a mutually acceptable early termination of the contract.

PM: You have no termination or notice clause in your contract (implied you HAVE to keep working)

Con: I understand that but due to <insert reason> I believe the only acceptable solution is a mutually acceptable termination of the contract

PM: You have no termination or notice clause in your contract (implied you HAVE to keep working)

Con: If I dropped my kecks right here and now and tuliped in your lap would you consider that grounds for termination?

PM: That's outrageous! I'd have you walked off site instantly!

Con: I believe you now agree we have a mutually acceptable solution - Can we discuss the finer detail to avoid you requiring a dry cleaning bill?

Obviously it's not true - but it does illustrate the point that agreement can be reached to terminate early.

[Batcher]

Which is exactly what the OP wants - to get the client to terminate his contract so he can walk away. It may not be very professional but if invoking MOO doesn't work, there's always the turning up late and being rude to everyone avenue...

I'd also be interested to know what's so bad about this permie that you'd walk away from a contract but not sure we'll get to find out!

Yes, I realised that and also that he said he would rather be on the bench than continue with the contract but from my point of view that would be daft. It's only 3 months which isn't very long to put up with it and gives extra funds to the warchest.

I once left a permie job for another permie job purely because I couldn't get on with my manager. He left 2 months after me and I would have had a great chance of getting his job. I always said I wouldn't leave another job because I didn't get on with someone. I continued that into my contracting life which is easier to do as you never have too long to wait until the next renewal. Then if another 3 months are offered I think it's not too long to put up with tulip and keep it going