Did you know ... federal termination notice provisions underpin all dismissals?

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Did you know ... federal termination notice provisions underpin all dismissals?

Did you realise that s170CM [Employer to give notice of termination] of the Workplace Relations Act 1996 applies to all dismissals in Australia - Federal and State award or agreement employees and non-award employees?

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Did you realise that s170CM [Employer to give notice of termination] of the Workplace Relations Act 1996 applies to all dismissals in Australia — Federal and State award or agreement employees and non-award employees?
 
This means that minimum notice periods relating to dismissals are set-out in that section.
 
The section should be considered no matter what the principal instrument governing any  employment relationship is. The extracted section provides:
‘… The required period of notice is to be worked out as follows: …
  • Not more than one year - at least one week.
  • More than one year but not more than three years - at least two weeks.
  • More than three years but not more than five years - at least three weeks.
  • More than five years - At least four weeks.
Note that the section adds that there is an increase in the notice period of one week if the employee: (i) is over 45 years old; and (ii) has completed at least two years of continuous service with the employer.
This section prescribes a floor for notice periods on dismissals. Other instruments may provide more generous entitlements — in excess of this floor.
 
A question was recently posed to our Ask an Expert service in relation to notice periods during probation periods. The question and answer in edited form are below.
 
Question:
 
1. What is the minimum period of notice required to be given to an employee during their probationary period if the probationary period is for three months?
 
Can you please clarify the minimum period required within each State jurisdiction?
 
2. Can the period of notice that applies during probation be different to the period of notice that applies to a permanent employee if it is clearly stipulated in their contract of employment?
 
Comment: 
 
A key initial point is noteworthy. The Federal Workplace Relations Act prescribes that one week's notice must be given by the employer to an employee who has completed up to 12 month's continuous service with the employer. This is a minimum requirement applying across Australia. 
 
This can become a problem when a State award/agreement prescribes less than one week's notice during the initial period of employment. An aggrieved employee could arguably pursue a claim with the federal department, DEWRSB, for breach of the Act.
 
DEWRSB investigates breaches of awards and agreements, and pursues the recovery of unpaid wages. 'Unlawful termination' actions under the federal legislation can be pursued by aggrieved employees with the Australian Industrial Relations Commission.
 
The notice provision for a non-award employee on probation may differ once probation has been completed, however, the minimum statutory requirements stipulated by the Act (one week's notice by the employer) also apply to a non-award employee during the first 12 months of employment. The contract of employment should stipulate what notice of termination is required by the employee as the statute only provides minimum notice periods when notice is given by the employer.
 
Usually, the period of notice required by both parties under an industrial award or EBA is identical and is not affected by the employment being in a probation period.
 
In most award situations, notice in the first year is also one week. This would be the general position in all jurisdictions, but it might be advisable to check with your employer association [if a member] or the relevant state industrial authority.
 
Note: usually employees can be paid out the requisite notice - i.e. the employer is not obliged to allow the employee to work-out the notice period.
 

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