Termination

There has always been some uncertainty about whether employers may hold departing employees to restrictive covenants …

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Protection from unfair dismissal is guaranteed in the Fair Work Act for all employees covered by the national workplace relations system, a modern award, a registered enterprise agreement or for those who earn under the high earnings threshold (which is reviewed on 1st July each year) …

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The Fair Work Act includes in the meaning of dismissal instances where the employee feels forced to resign as a result of the employer’s conduct …

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◉ Termination of fixed-term contracts A fixed-term contract should state the date on which the employment relationship shall end and any notice periods required by the employer and employee …

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A genuine redundancy occurs where (a) the job completed by the employee no longer needs to be performed (by anyone), as a result of operational changes; and (b) the employee could not have been redeployed within the employer’s business or an associated entity …

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Employees are protected from unlawful dismissal even where they are excluded from the protections for unfair dismissal and regardless of their service period …

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An employee must be given written notice of the date on which their dismissal/redundancy will take effect …

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At the end of the employment relationship, the employee should receive all outstanding wages (inclusive of any penalty payments, allowances, etc), as well as payment for accrued paid annual leave or any time off instead of overtime that has not been taken and applicable loadings …

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Employers may only dismiss an employee if they have a valid reason relating to the employee’s conduct or capacity or because of genuine redundancy …

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Where 15 or more employees are dismissed because of economic, technological or structural reasons, written notice must be provided before such dismissals are undertaken to Centrelink (Chief Executive Officer of the Commonwealth Services Delivery Agency) …

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There is no statutory disciplinary policy which employers must follow, but such a policy will be considered if the Fair Work Commission is later asked to review whether a dismissal could have been unfair, harsh or unreasonable …

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