A resignation occurs when an employee expresses their intention to no longer be bound by the contract of employment. Typically, the communication is accepted in writing. Before an employer accepts the resignation, they should consider whether the employee has met the notice requirements under the relevant modern award, Enterprise Agreement, or employment contract.
Fair Work legislation protects employees from ‘forced’ resignations. A valid resignation is at the initiative of the employee and not as a result of duress or a situation where the employee felt they had no other option but to resign.
When the employer chooses to end the employment relationship, in legal terms the employee has been dismissed “at the initiative of the employer”. The reason may be because of unsatisfactory work performance, misconduct, operational requirements, or long term absence due to injury or illness.
When considering dismissing an employee, Employers need to ensure they follow a ‘best practice’ process which is heavily driven by legislative requirements. This can help defend a claim if one is lodged at the Fair Work Commission (FWC) and also safeguard the reputation of the business. Employers should also be aware that discrimination legislation prevent employees from being treated unfavourably because of a protected attribute. Therefore, dismissals need to be conducted fairly and consistently throughout the business.
The FWC operates with discretion when considering whether a dismissal was ‘harsh, unjust or unreasonable’ and can take other relevant matters into consideration such as the length of service and age of an employee and the level of HR expertise within the business.
When resignation or terminations occur at your business, contact our Workplace Relations Advice Line as a first action to get immediate, professional guidance around how to handle matters. Our consultants can lead you through correct procedures, or even assist your business to develop long term strategies that address staff turnover.
Our services include:
- Managing the performance, conduct and termination of your employees
- Statutory and regulatory requirements
- Pre-empting and addressing potential grievances and disputes that may arise from such proceedings
- Facilitating mediations and disciplinary proceedings
- Representation when claims have been made
Talk to our consultants about employment termination matters. You can reach them online or by calling the Workplace Relations Advice Line on 03 8662 5222.