Ending employment - Fact sheets - Fair Work Ombudsman
Effective business law attorneys to help you handle employee termination. Free initial consult. Offices in Portland and Seattle. Call Find our fact sheet on ending employment. Employees covered by the national workplace relations system can apply to the Fair Work Commission for unfair. Effectively Ending an Employment Relationship. Find out more about this topic, read articles and blogs or research legal issues, cases, and codes on.
Top of page Can an employee withdraw their notice? Generally no, unless the employer decides that they want to keep the employee on.
Hasty words can be spoken in moments of high stress or emotion. To avoid confusion later on it is probably better to give the employee an opportunity to consider their decision to resign, to be really sure that the employee means to resign. Top of page What period of notice is required from an employer? The NES exclude certain employees from notice of termination entitlements, including casual employees or an employee being terminated because of serious misconduct.
Some modern awards also exclude daily hire employees. Top of page What entitlements should be paid on termination? This is not the time to make an employee wait for any money they are owed.
Ending the employment relationship
An employer must pass on any entitlements they are required to pay. Again, any difficulties at this stage may increase any employee bitterness and could result in unnecessary legal expenses.
Except in special cases, an employer can't legitimately 'stand-down' an employee without pay and special termination provisions apply if the employer would like to introduce technological change.
It is best practice to make the final wage payment on the last day of work or within the pay run that includes that day. Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
The Fair Work Commission may consider an employee has been unfairly dismissed if: What is harsh, unjust or unreasonable? The Fair Work Commission will decide if a dismissal is harsh, unjust or unreasonable, and they consider all of the following circumstances: Employees covered by the national workplace relations system can apply to the Fair Work Commission for unfair dismissal if they have been terminated by their employer, or forced to resign because of something the employer did, and they have worked the minimum employment period.
Employed in a small business for at least 12 months. A small business is defined as any business with fewer than 15 employees. This is calculated on a simple headcount of all employees who are employed on a regular and systematic basis.
Employed in a larger business for at least 6 months. If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period. To be eligible employees must also be: This threshold is indexed each financial year starting on 1 July. An employee advised her employer that she was taking time off work to undergo sex-reassignment surgery.
The employer granted the employee the time off but when the employee returned to work after the surgery, she was fired. Human rights complaints may also arise from the manner of termination. It is wise for an employer to make sure that an employee is treated with dignity, respect and access to necessary supports when ending the employment relationship. An employee requested modified duties or an alternate work assignment as an accommodation of her disability-related needs.
The employer did not consider accommodation.
Ending the employment relationship
In response to her request for an appointment to discuss modified duties, a meeting is set up and her employment is terminated by a person that she barely knew, had never worked with, and who did not investigate any job opportunities that might have been available.
Where the employer suspects that an employee may be displaying symptoms of mental illness, it is particularly important that appropriate supports be put in place before firing the employee if the employer has accommodated the employee and there are legitimate non-discriminatory reasons for the termination. This is in the interests of both the employee and the employer. On the other hand, if the reasons for termination are discriminatory, the employer may be ordered to compensate the employee for the losses that resulted from the manner of termination, along with any other discrimination that may have been found.
An employee with a mental illness is fired. The employee experiences significant distress and ends up being hospitalized. Ultimately, he is unable to work for many months. In awarding remedies, the impact on the employee is taken into account and the employer is required to pay a substantial amount in damages to the employee, including damages for mental anguish. In a reorganization, a company dismissed a number of women who had recently returned from maternity leave.
This decision was driven by a desire to create a core workforce for the future and based on a perception that women with young children were more likely to leave. This was found to be a genuine case of discrimination.
Due to an economic downturn, a company was forced to lay off staff. Two foremen, one 56 and the other 57 with over 32 years service were selected for termination. Both were offered a generous retirement package. The two foremen who remained were younger than the two released. This would contravene the Code, even if this is done in accordance with other legislative requirements such as under the Employment Standards Act or the Companies Creditors Arrangement Act.
A better approach is to clearly set out a process and criteria for making layoff decisions, and to apply this consistently. They should be related to the goals of the reorganization or the needs that have been identified by the company.
Ideally, positions, rather than people, should be chosen for elimination and those positions should not later be refilled. A company decides that due to decreased profits and the need to be more competitive in the marketplace, it will introduce a new, more automated production system.
It identifies the number of positions that will need to be staffed and what the duties of each will be. It also identifies the current positions that will no longer be needed and why. It advises each person whose position has been declared redundant of this fact and how this decision was reached. It then invites all of these persons to compete for the new positions.
It runs the competition using objective, neutral criteria unrelated to Code grounds, and uses a scoring system that measures each candidate against the same stated criteria. Accommodation is provided when necessary. Past performance reviews are taken into account.
The candidates with the best scores are selected and sent for training. If qualifications are taken into account in making decisions about layoffs, they should be objectively evaluated.
This is found to amount to discrimination. An employer does not recall an employee for work because she is on maternity leave. The employer takes the position that all employees on leave were not recalled and therefore there is no discrimination.
This rule has an adverse impact on women who are unavailable due to pregnancy, and on employees who are on leave for other Code-related reasons such as disability. It is not found to be a bona fide occupational requirement. When an organization is planning for restructuring, possible human rights implications may be identified by considering the following questions: What is the purpose of the restructuring and how can this be achieved without having a discriminatory impact on staff?
What criteria will be used to identify which staff will be laid off? How will the restructuring affect staff? How can the principles of inclusion and accommodation be built into the process?
What measures can be put in place to address this? Has the impact of restructuring on them been considered?
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- An employee resigns, what are an employer's responsibilities?
Will these employees have the same opportunity as other employees to be retained on staff? What measures can be put in place to make sure that employees on leave are not disadvantaged in the process?
Is the workplace unionized? Are there any human rights protections in the collective agreement that should be taken into account? Exploring the answers to these questions may reduce the likelihood of an unintended discriminatory outcome and related human rights claims.
This can have many benefits to all workers: When designed properly, early retirement schemes are appropriate and will not raise human rights concerns. However, as early retirement schemes by definition target older workers, great care must be taken in using them to meet downsizing objectives. The fact that a generous retirement package is offered will not defeat a claim of age discrimination if the early retirement option was not truly voluntary in other words, if there is direct or implicit pressure being applied to accept retirement.
Human Resources reviews all employee files and identifies all workers over the age of They are warned that if they do not do so, their position may be selected for elimination, in which case they will simply receive severance and lose the opportunity to receive the early retirement package. Under these circumstances, some older workers feel compelled to accept the offer, even though they were planning to work longer.
This may result in a human rights complaint.