Leaving work

Leaving a job does not usually cause conflict between the employer and the employee. Reasons for leaving can include finding a job which you would prefer, or a change in your personal circumstances (for example, because you are going to move away from your place of employment). If you give adequate notice of your resignation, there is no reason for your employment to end badly.

Unfortunately, in a small number of cases, the end of the employment relationship causes conflict between the employer and the employee. When that happens, people often consider exercising their legal options. There are some complex rules about which options are available to different kinds of employees, so it is important to get advice and information as soon as possible if you are in conflict with your employer.

Resignation

When you decide to leave your job, the best practice is to give your employer a resignation letter or email telling them when you will leave and the last day of your employment. You must provide the right amount of notice before you finish with the employer. If you are a permanent employee an employer must not terminate your employment unless the employer has given you written notice of your dismissal. However, you can be dismissed without notice for serious misconduct.

An employee must be given the right period of notice. The NES sets out the minimum periods of notice, which changes according to the length of the employee’s service and their age. In addition, rules about notice of termination entitlements can also be found in an enterprise agreement or award.

The required notice periods under the NES are as follows:

  • not more than 1 year continuous service (1 week);
  • more than 1 year but not more than 3 years continuous service (2 weeks);
  • more than 3 years but not more than 5 years continuous service (3 weeks); and
  • more than 5 years continuous service (4 weeks).

The notice period also increases by 1 week if you are over 45 years old and have completed at least 2 years’ continuous service with the employer.

Some employees are not entitled to notice of termination. These include:

  • employees engaged for a specified period of time, for a specified task, or for the duration of a specified season
  • employees who are dismissed because of serious misconduct

Notice of termination under awards and agreements

Your employer may require you to work during your period of notice, or may direct you to leave immediately. If you have given the necessary notice, your employer must pay you the wages which you would have earned during the notice period.

If you do not give the employer enough notice, some modern awards, agreements and employment contracts provide that an employer can withhold money from an employee. The employer can only withhold from the employee’s final wages an amount equivalent to the period of notice required by NES less any period of notice actually given by the employee.

The employer cannot force you to give or work a longer notice period than that required by the NES or the relevant registered agreement or award.

Redundancy, Redeployment, and Retrenchment

Redundancymeans that the employer has decided that it no longer wants the employee’s job to be done by anyone.

Sometimes a redundant employee can be transferred to another part of the employer’s organisation to do a different job. This is called redeployment. Redeployment cannot happen without the employee’s consent if it involves a significant change in the employee’s pay, status, or other conditions (such as location).

If an employee cannot be redeployed, then they will be retrenched. Retrenchment is the termination of employment because the employee is redundant. Employees who are retrenched are usually entitled to a retrenchment payment (this is called a severance payment) and notice of their retrenchment. These payments are usually calculated with reference to the length of the employee’s service with the employer.

Employees who have been retrenched may have some legal rights in relation to unfair dismissal, discrimination complaints, recovery of unpaid wages, and other legal actions. If you have been retrenched and you think that something unfair or unlawful may have happened, then you should contact your union, the Fair Work Ombudsman, or your local community legal centre as soon as possible.

Dismissal

An employer is entitled to dismiss an employee if the employer gives the employee the correct amount of notice of their dismissal.

If you are dismissed you may have grounds to claim unfair dismissal if, for example:

  • there was no valid reason for the dismissal;
  • there was no adequate warning that dismissal may occur; and
  • you were not given an opportunity to give an explanation or to justify your continuing employment.

If your employer is dissatisfied with your performance at work, they should explain to you what the problem is. This may require that they explain how the job should be performed, offer training to you if it is appropriate, or suggest how you can rectify any problems. They should then give you time to improve your performance and tell you when they intend to review it again.

An employer has a right to dismiss an employee without any notice if the employee has:

  • acted dishonestly;
  • failed to carry out a reasonable direction; or
  • behaved so badly that instant dismissal is justified.

In such cases, the employee has the right to explain or justify their actions and a proper investigation should be conducted before the employer decides whether to dismiss the employee.

Constructive Dismissal

If an employee has resigned from a job in circumstances where they had no choice but to leave then this may be a 'constructive' dismissal. This means that in fact the employer’s behaviour had already brought the employment to an end, even if it was left to the employee to resign.

Examples of constructive dismissal can include:

  • treating an employee so badly that it is impossible for them to attend work without putting their physical or psychological health in serious jeopardy;
  • a statement to an employee that they should resign or they will be sacked; or
  • a significant change by the employer of the employee’s tasks, or circumstances of work.

In these circumstances there may be grounds to make a claim for unfair dismissal.

Hot Tip

It is important that you treat all warnings seriously whether verbal or in writing. There is no legal right to three written warnings, as is often thought.

Termination under general protections

Dismissing someone from their job for a discriminatory reason, that is, because of their race, disability, sex, age, carer’s responsibility, transgender status, or homosexuality is unlawful termination. The general protections provisions of the Fair Work Act 2009 provide protection from workplace discrimination and protect workplace rights and freedom of association.

You can apply to the Fair Work Commission (the Commission) if you believe that you have been dismissed and allege that your dismissal was in contravention of the general protections provisions of the Act.

From 1 January 2013 you have 21 days to lodge an application with the Commission. If the application is not resolved in conference, then you can take the matter to the Federal Court or Federal Magistrate’s Court for a hearing.

Hot Tip

See LawAssist - Employment rights: General protections dismissal for information and sample forms if you are making an application under general protections.

Unfair dismissal

When a dismissed employee wishes to make a complaint of unfair dismissal, the effect of the complaint is that the dismissal was ‘harsh, unjust, or unreasonable’. The complaint is made by an application to an independent body.

Who can make an application in relation to unfair dismissal?

Not all employees are entitled to make an application in relation to unfair dismissal. To be able to make an application in the national system, the employee must:

  • be covered by an award or collective agreement, or earn less than a specified amount (in 2011, this amount is $113,800 per year, but is likely to rise on 1 July 2012);
  • have completed the minimum qualifying period of employment – for employers with at least 15 employees, this period is six months; for employers with less than 15 employees, this period is 12 months; or
  • have been dismissed by the employer in circumstances which were harsh, unjust, or unreasonable.

An employer might have a defence to the application if:

  • the employer has less than 15 employees and the dismissal followed the procedure set out in the Fair Dismissal Code(available from the website of Fair Work Australia); or
  • the dismissal was a case of genuine redundancy, and the employer followed all of the rules about consultation which applied to the redundancy. (Terms such as rules about consultation are permitted in modern awards and are compulsory in enterprise agreements.)

A redundancy is not genuine if the employer could have redeployed the employee rather than retrenching them.

Making an application in the national system

In the national system, the application must be lodged within 21 daysof the date of dismissal. This includes weekends and public holidays, although if the last day for making the application is a weekend or public holiday then the deadline is extended to the next working day. Applications can be lodged over the counter at Fair Work Australia, or by post, fax, email, online, or over the phone.

If an application is made late, then you may lose your right to make an application. The Fair Work Commission may give an extension of time, however extensions are difficult to obtain, so it is very important to make your application as soon as possible. A union can make an application on behalf of the employee or employees involved.

After an application has been lodged, there will be a conciliation, during which the employee and the employer will have a conference with a member of the Fair Work Commission in an attempt to resolve the claim. This may be conducted either in person or by phone.

Hot Tip

See LawAssist - Employment rights: Unfair dismissal for information and sample forms if you are making an application of unfair dismissal.

Making an application in the NSW system

Employees under the NSW system (NSW public servants and local council employees) can make a claim if they are covered by a New South Wales State Award or registered agreement, or earn less than $123,300 (check on Industrial Relations Commission website for updated amount).

In the NSW system, an unfair dismissal application must be lodged within 21 days of the dismissal. Unfair dismissal procedures in the NSW Industrial Relations Commission are similar to those in Fair Work Australia. Specific information about the NSW IRC application process is available from the website of the NSW IRC. Unfair dismissal applications in the NSW system can also be made in cases of threatened dismissal.

How an unfair dismissal complaint is dealt with

The body which receives the complaint of unfair dismissal will:

  • consider whether it is able to deal with the application (this is also known as whether it has ‘jurisdiction’);
  • attempt to conciliate between the employer and employee, to help them reach an agreed resolution to the application; and
  • if the application cannot be resolved by conciliation, conduct a hearing of the evidence and make a decision about whether the employee was unfairly dismissed, and whether it should make an order in the employee’s favour.

From conciliation to arbitration

If conciliation is unsuccessful, the application will proceed to an arbitration hearing. This is a more formal process where both the employee and employer give evidence and make submissions setting out their case to the Fair Work Commission (the Commission). An agent, an industrial organisation or (with permission from the Commission) a lawyer can represent the employee and employer at an arbitration hearing.

After hearing from both sides, the Commission will determine the claim, either by dismissing it or by making a legally enforceable order in favour of the employee. In considering whether to make an order, the Commission must take into account whether:

  • there was a valid reason for dismissal
  • the employee was notified of the reason
  • the employee was given an opportunity to respond to any allegations against them
  • the employee had a chance to have a support person present at discussions concerning their dismissal
  • the employee was warned about any unsatisfactory performance
  • the employer’s conduct was appropriate given the size of the business.

What are the possible outcomes?

Where a claim of unfair dismissal is upheld, the Court or the Fair Work Commission may order an employer to:

  • reinstate the employee to his or her former position, with or without back pay;
  • re-employ the employee in another position, with or without back pay; or
  • compensate the employee by ordering payment of up to six months’ pay if reinstatement or re-employment is considered impracticable.

Other Complaints

Depending on the kind of complaint you want to make, you may be able to make a complaint or report to:

  • WorkCover;
  • the Australian Taxation Office (including complaints about non-payment of superannuation);
  • an industry body;
  • your union;
  • Anti-Discrimination Board of NSW;
  • Australian Human Rights Commission;
  • the Apprenticeships Board;
  • State Training Services; and
  • Australian Apprenticeships Centre.

These reports may not result in a specific benefit to you, but they may improve your employer’s conduct in the future.

When making applications in different jurisdictions or to different agencies, you will need to enquire about any possible restrictions which prevent your complaint being dealt with in one jurisdiction or by one agency at a time.