Termination of employment - employer questions about WorkChoices (September 2006)

Q&A

Termination of employment - employer questions about WorkChoices (September 2006)

This article is another in a series of the most frequently asked questions by employers on issues related to the implementation of the WorkChoices legislation. Here are more questions about termination of employment.

WantToReadMore

Get unlimited access to all of our content.

This article is another in a series of the most frequently asked questions by employers on issues related to the implementation of the WorkChoices legislation. Here are more questions about termination of employment.

The answers are given on the assumption that the employer is a 'constitutional corporation' and covered by WorkChoices.

Unfair dismissal

Q. Under the new WorkChoices legislation, is there an expressed requirement to pay termination payments within a set time frame?

A. The answer is yes, although there is some debate as to whether separate actions are available through the appropriate civil court.

It should also be noted that an award-free employee whose annual salary is equal to or exceeds $98,200 per annum is excluded from claiming unfair dismissal, even where the employer employs more than 100 employees.

Notice of termination

Q. Under the new WorkChoices legislation, is there an expressed requirement to pay termination payments within a set time frame?

A. Under WorkChoices, the minimum period of notice of termination required to be given by the employer to an employee in the first 12 months of employment (one week's notice) does not apply if the employee is terminated during a period of probation (and other circumstances specified in the Act). However, the employer may still be required to comply with the notice of termination provisions prescribed by the relevant pre-reform award, pre-reform agreement, new workplace agreement or contract of employment.

It is not uncommon for a pre-reform award or agreement to require the employer to give one week's notice of termination regardless of the employee's employment status (eg. on probation). Failure by the employer to give the required notice under the applicable industrial instrument may result in a successful claim by the employee for the requisite week's pay in lieu of notice.

Termination payments

Q. Under the new WorkChoices legislation, is there an expressed requirement to pay termination payments within a set time frame?

A. The only termination payment provision in WorkChoices relates to the payment of accrued annual leave upon termination of employment, which is silent on this matter.

Industrial tribunals have usually determined that an employee is entitled to all monies due on termination at the time of termination. Failure by the employer to pay all monies due on the day of termination could breach the relevant industrial instrument provision and/or employment legislation.

Related

Termination and Redundancy



  

 

Post details