An employment arrangement between an employer
and a worker can end for a whole range of reasons
such as resignation, redundancy or dismissal.
When issuing a final warning, an employer needs
to tell the worker that if their performance doesn’t
improve, their employment will be terminated.
There are specific rules in place to make sure that
workers are protected when employment in their
job ends, for whatever reason.
A worker can also be dismissed for breaking
company rules or policies – but only if the rules have
been made clear and that the employer is sure the
worker understands the rules.
Put it in writing
A worker can resign from their job verbally, but to
avoid any misunderstanding, it’s best to confirm the
resignation in writing, clearly stating the date they
will be leaving.
If a worker refuses to do this, it’s a good idea for the
employer to officially accept the resignation by
confirming in writing all the details the worker stated
when telling the employer of their intention to leave.
Most awards say that a worker has to give their
employer a notice period before they leave.
If you want to leave your job, make sure you
check your award to find out how much notice
you have to give. If you don’t – you might miss
out on wages.
Give notice
Generally, an employer must give a worker notice if
they are terminating their employment (unless it is
an on-the-spot dismissal). The amount of notice is
based on the length of time the employee has been
working and is set out in the award.
Poor performance and misconduct
A worker can be dismissed for poor performance if
their work history shows that they have not been
meeting the expectations outlined in their contract.
An employer must make a worker aware that they
are not happy with their performance and the
employee must be given time to improve their
performance.
www.industrialrelations.nsw.gov.au
Warnings
An employer does not have to give a worker three
warnings before they are dismissed for poor
performance, unless it specifically says so in the
award or agreement that they work under.
It is a good idea for businesses to have policies in
place that outline the number of written and verbal
warnings that will be issued to a worker before
they are dismissed. This is so workers have a clear
understanding of the process and of their rights and
responsibilities.
There are specific rules for small business employers
who have less than 15 full-time equivalent
employees and they must follow the Small Business
Fair Dismissal Code when dismissing employees.
Even if dismissed
There must be a valid reason for being sacked from
a job. A worker can only be dismissed for:
• poor performance
• misconduct
• extremely serious misconduct – resulting in an
on-the-spot termination
• or if the business goes bankrupt or is sold.
What entitlements could workers be owed?
What is unlawful dismissal?
Workers, in their final pay, should receive any:
• outstanding wages still owed
• payments being made instead of a notice period
of termination by the employer – this could be
between 1-5 weeks pay, depending on how
long employee has worked there
• accrued annual leave or long service entitlements
• redundancy or severance pay entitlements.
Unlawful dismissal happens if a worker is dismissed
for any of the following reasons:
• temporary absence from work because of illness
or injury
• trade union membership or participation in trade
union activities
• non-membership of a trade union
• seeking office or acting as a representative for
employees
• filing a complaint or participating in proceedings
against an employer
• race, colour, sex, sexual preference, age, physical
or mental disability, marital status, family or
carer’s responsibilities, pregnancy, religion,
political opinion, national extraction or social origin
• absence from work during parental leave
• reasonable temporary time off work to volunteer
for an emergency management activity such as
working as a registered volunteer for the State
Emergency Service (SES).
On-the-spot dismissal
A summary dismissal is an instant or on-the- spot
termination. This usually happens when an
employer has reasonable grounds to believe a
worker is guilty of extremely serious misconduct.
This includes theft, fraud, violence or serious
breaches of health and safety procedures.
A summary dismissal means that an employer can
dismiss a worker without giving notice or payment
instead of notice.
Unfair dismissal – what is harsh, unjust or
unreasonable?
An employer must have a valid reason for dismissing
a worker, based on poor performance, bad conduct
or changes to the operations of the business.
A dismissal is unfair when it is harsh, unjust or
unreasonable. Fair Work Australia will look at the
facts and decide based on whether:
• a valid reason was given for the dismissal
• the worker was given an opportunity to respond
• the employer unreasonably refused to allow the
worker to have a support person present
• the worker was given any prior warnings about
their actions
• the size of the business or lack of HR expertise
had an impact on the processes followed by the
employer.
Workers can have a support person
come with them to any discussions with
their employer about dismissals (as
long as they are not a lawyer acting in a
professional capacity).
Natalie’s story
Natalie is employed as a child care worker at
a local pre school. Lately, Natalie has had a few
disagreements with her boss, which created
a lot of stress and tension in the workplace.
Because of this, Natalie’s boss called a meeting
with her to talk about her performance.
Worried that she will get fired on the spot,
Natalie calls the ATSI unit at NSW IR to find out
what she should expect and the best way to talk
about the problems.
The ATSI unit talks to Natalie about the specific
issues and whether there is a dismissal policy
in place. Natalie is also told that she is able to
bring a support person to the meeting.
Feeling more prepared and confident about her
workplace rights and responsibilities, Natalie is
able to go to the meeting and have a constructive
conversation with her boss about her
performance and, most importantly, how
to resolve these issues.
Where can I get more information?
For more information on all our services and
publications go to the Indigenous People area
of the NSW IR website at
http://www.industrialrelations.nsw.gov.au/Indigenous
_people.page
www.industrialrelations.nsw.gov.au
Free call: 1300 361 968
E-mail: [email protected]
Website: www.industrialrelations.nsw.gov.au