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February & March 2021
Leave entitlements available to National System Employees are derived from the National Employment Standards of the Fair Work Act 2009 (Cth). Full time and part time employees accrue certain types of paid leave each year including 4 weeks of Annual Leave and 10 days of Personal/Carers Leave. They are also entitled to 2 days of Compassionate Leave per occasion. Although casual employees do not have access to these paid leave entitlements, they are entitled to 2 days of unpaid Carers Leave and 2 days of unpaid Compassionate Leave per occasion. Some employees also have access to 12 months of unpaid Parental Leave and Long Service Leave.
Employers should have a formal written leave policy in place, outlining any notice and evidence requirements. For example, providing a medical certificate or similar evidence when needing to access Personal/Carers Leave after a public holiday or providing 4 weeks’ notice when requesting to take Annual Leave may be reasonable to include in a policy. When enforcing these policies, employers should be mindful they cannot unreasonably refuse a request from an employee accessing a leave entitlement under the Fair Work Act 2009 (Cth). If your employee is a State System Employee, their leave entitlements may be different. For more information, contact the CCIWA Employee Relations Advice Centre on 9365 7660 or email@example.com.
When dealing with the exit of an employee, there are different rights, obligations and legislation that come as a result of ending employment.
Employees can resign at any time without discussing the decision with you. The Real Estate Industry Award 2020 and Clerks – Private Sector Award 2020 requires an employee to work out a minimum notice period.
If you do not need the employee to work their notice period, you can pay them in lieu of notice and let them leave early.
A job becomes redundant when the business either:
Businesses of less than 15 employees may not be required to pay employees redundancy benefits, however this will be dependent on the Award terms and conditions.
If you need to dismiss an employee, you must have a valid reason, such as:
In dismissing an employee, they can challenge the dismissal with the Fair Work Commission if they think it was unfair. However, if you’re a small business with fewer than 15 employees, an employee needs to have been working for you for at least 12 months before they can make a claim for unfair dismissal.
Notice & Final Pay
The final pay must include:
In paying out the notice period, the amount the amount paid to the employee must equal the full amount the employee would have been paid if they had worked until the end of the notice period (i.e. incentive-based payment/bonuses and monetary allowances)
If the employer pays out the notice period, the employee’s employment ends on the date that payment in lieu of notice is made. The employee doesn’t stay employed during the notice period (or continue to accrue entitlements, such as annual leave). If the employer doesn’t pay out any part of the notice period, the employee stays employed for the notice period. Employment can’t end on a date earlier than the day the notice is given.
When an employee is terminated on the grounds of serious misconduct, the employer doesn’t have to provide any notice of termination. However, the employer does have to pay the employee all outstanding entitlements such as payment for time worked, annual leave and sometimes long service leave. Whether an employer needs to pay out long service leave depends on where the entitlement comes from, usually state or territory long service leave laws.
Serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include:
What to do next
For more information and any assistance in dealing with terminations, please contact REEFWA on 9365 7510 or firstname.lastname@example.org.