Terminations

Before terminating an employee it is important to know exactly how that decision will impact on your business and your obligations as the employee. Also for employees who are facing termination it pays to know your rights and entitlements. Below is an exert from the Australian Government Workplace Ombudsmen website which gives both employers and employees some useful information about there rights and responsibilities. More information can be found on the Australian Government Workplace Ombudsmen website at http://www.wo.gov.au/

Termination of employment

Federal workplace law sets out specific rules and protections relating to the termination of an employment relationship.

These rules relate to the entitlements a worker may be owed at the conclusion of their employment, whether the termination of the employment was unfair or unlawful, and for the enforcement of entitlements due under an industrial instrument in the case of redundancy.

Post-termination entitlements

In most cases workers employed on a permanent basis will be owed entitlements at the time their employment ends. These can include payment for accrued annual leave and accrued or pro-rata long service leave if the employee is eligible.

If a permanent employment relationship is terminated the employee must be provided with notice or payment in lieu of notice (except if the employee is guilty of serious misconduct). The amount of notice (or payment in lieu) will depend on the age of the employee and how long they have been employed on a continuous basis by the employer.

Workers and employers who need assistance calculating how much is owed in post-termination entitlements can contact the Workplace Infoline on 1300 363 264 for assistance.

If a worker believes that they have not received payment for all of their entitlements at the time their work ends, the Workplace Ombudsman can investigate and take action to make sure that all legal entitlements are paid.

Redundancy

Some industrial instruments such as Awards and Certified agreements provide workers with the right to receive payment in the case of redundancy. Redundancy payments usually depend on how long the worker has been continuously employed by the same employer.

If a worker believes that they have not received payment for their correct redundancy entitlements, the Workplace Ombudsman can investigate and take action to make sure that all legal entitlements are paid.

In cases where a worker is made redundant due to the business going broke and the worker does not receive any redundancy entitlements they are owed, the worker may be eligible to receive payment from the Government for these entitlements. For further information and eligibility requirements visit www.workplace.gov.au/geers or call the GEERS Hotline on 1300 135 040.

What are unlawful termination & unfair dismissal?

Unlawful termination is when an employer fires a worker for discriminatory reasons. Workers who believe that they have been sacked on discriminatory grounds can lodge an application with the Australian Industrial Relations Commission. Workers must lodge an application with the Commission within 21 days of being sacked. More information can be obtained by contacting the AIRC on 1300 799 675 or by visiting their website at www.airc.gov.au.

Workers who believe that they have been unfairly dismissed can lodge an application with the Commission within 21 days of being sacked. In determining unfair dismissal the Commission may consider things such as:

  • whether there was a fair and valid reason for the termination;
  • whether the employee was notified of that reason and given the opportunity to respond;
  • whether the employee has been notified of any unsatisfactory performance

Note however that unfair dismissal does not apply to workers who are employed by a company with less than 100 workers; workers employed on a seasonal basis; workers who are on probation or workers who were sacked for genuine operational reasons.

If a worker believes that they have been sacked for reasons relating to trade union membership, for making a complaint or participating in proceedings against their employer, or for refusing to sign or negotiate an AWA they can also make a complaint to the Workplace Ombudsman on the basis of their right to freedom of association.