Sound reasoning to the dismissal is vital for employers to ensure a minimal risk of unfairness claims from employees. There are four key areas in which the release of an employee can occur with proper reasoning:
*If an employee is to be dismissed on grounds related to performance and conduct, they must be allowed to be heard before dismissal, rectify their behaviour, and must have been given a warning before the discharge.
Failing to base a termination on the above areas could result in an unfair dismissal claim. However, there are some exceptions, such as whether an employee has been involved in severe, repeated or gross misconduct.
An employee's final termination pay should be paid within seven days and include:
Employers can ask employees to sign a declaration that releases them from obligations related to their dismissal as long as they have made full payment to the above.
Employers must ensure to follow the correct and fair procedure when terminating an employee, following specific rules:
Termination of the employment must be consistent with the terms of any employment contract and the requirements of any Modern Award/enterprise agreement that applies to the relevant employee. Failure to do so can result in claims for breach of contract or breach of the industrial instrument. Potential remedies include reinstatement and compensation. Penalties and other remedial orders can be made for violations of general protections laws.
An employee may be eligible for a remedy under the national unfair dismissal laws if they have:
If an employee is not eligible to bring an unfair dismissal claim against the employer, provided the reason is lawful (e.g. not discriminatory or in breach of some other law), the procedure for terminating those employees are more straightforward.
Employees who have been employed for six months (12 months for businesses with less than 15 employees) are protected from terminations of employment that are harsh, unjust, unreasonable or that don't follow the correct grievance procedure. If the employee claims being unfairly dismissed, the employer will have to provide evidence of compliance with the termination procedure.
Employees are also protected from being dismissed in the following cases:
Employees working with the business for at least one year are entitled to redundancy pay according to their length of service. Redundancy pay is in addition to an employee's notice period.
Redundancy pay does not apply if the company employs fewer than 15 employees.
* There is a reduction in redundancy pay from 16 weeks to 12 weeks for employees with at least 10 years continuous service.
Redundancy pay is not payable in the following circumstances:
Employees who want to resign from their job must inform their employer in writing. The notice period starts when the employee sends their notice and must be respected unless the employer elects to make a payment in lieu or brings the employment to an end sooner. The required amount of notice that is usually outlined in the employment contract is between one and four weeks.
An employee can take annual leave during a notice period if the employer agrees to it, but an employer cannot force an employee to take leave as part of the notice period.
The employee's resignation letter should be stored in the employee's personnel file, with this file remaining private and confidential. Generally, no one can access them other than the employee, their employer, and relevant payroll staff. If requested by the employee, or the former employee to whom the record relates or the Fair Work Ombudsman, employers must make copies of these records available.
Both employers and employees must respect the notice period when terminating the employment, except in cases of serious misconduct. Employees may be paid in lieu of notice.
Employees who are 45+ and have been with the company for two years or more are entitled to either an extra week's notice or the equivalent pay.
While the above limitations are statutory, often employment contracts will include longer notice periods.
Particularly for senior executives, that notice may extend as far as 9 to 12 months.
Unemployment payment can be claimed by people between the age of 22 and retirement age who are Australian citizens, holders of permanent residency visa and new residents who have resided in the country for 104 weeks and meet the criteria, which imposes limits on income and assets.
To be eligible for the unemployment benefit, the individual must have lost their job and demonstrate that they are actively looking for work or be sick or injured and unable to do their usual work. Payment amount depends on each person's circumstances, and vary between $510 and $793 per fortnight.