Termination of employment - employee entitlements

Q&A

Termination of employment - employee entitlements

Questions continue to arise on WorkChoices and how the legislation has impacted on employees' entitlements on termination of employment. Unfair dismissal actions are unavailable if an employer employs 100 or fewer employees - but which employees are counted?

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Questions continue to arise on WorkChoices and how the legislation has impacted on employees' entitlements on termination of employment. Unfair dismissal actions are unavailable if an employer employs 100 or fewer employees - but which employees are counted?

Another question recently posed related to an employee's entitlement to severance pay when the employee has refused an offer of alternative employment arranged by the employer.

Unfair dismissal and the 100 employees issue

Q. Are employees entitled to redundancy if they refuse to accept a new offer of employment when a transmission of business occurs? We have offered employment on the same terms as previously applied, transfer of entitlements, continuity of service, and employment at the same location.

A. This would depend on the nature of the casual employees within the company.

Under Federal unfair dismissal law, for the purposes of defining an employee to be included in the count of 100 employees, the Workplace Relations Act includes the dismissed employee, and any casual employee who has been engaged by the employer on 'a regular and systematic basis for at least 12 months', but does not include any other casual employee.

The threshold number of 100 employees would also include those employees employed by any related corporation.

Redundancy and refusal of new offer

Q. Are employees entitled to redundancy if they refuse to accept a new offer of employment when a transmission of business occurs? We have offered employment on the same terms as previously applied, transfer of entitlements, continuity of service, and employment at the same location.

A. A redundancy occurs when the job no longer exists, usually because of economic reasons or company restructure.

In this case, the job still exists in its current form, therefore employees refusing to accept the job offer to the transferred business would not appear to have an entitlement to redundancy pay.

An employee may have a valid claim for redundancy pay where he or she was offered quite inferior conditions of employment, or a re-location to a site some distance from their normal place of residence.

Related

WorkChoices updates - what you need to know - unfair dismissal - 100 employee exemption

Alternative employment - no severance pay

Redundancy, notice of termination & WorkChoices

  

 

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