22 Feb Am I Being Terminated? What Constitutes Termination?
Being terminated from employment means the employee no longer works for an employer. An employer must clearly communicate a termination of employment to an employee. The termination must come in the form of a letter. The Fair Work Act requires the employer to identify the date of termination. A termination must be lawful, complying with the relevant award or agreement. In addition, the termination must be not breach the employment contract or contravene any legislation.
A termination arises when either the employer dismisses the employee as a result of a breach of contract or the firm can no longer afford to keep the employee and so a redundancy is offered. A termination may take effect immediately if there has been a breach of the employment contract due to serious misconduct. The employment contract should sufficiently outline what constitutes serious misconduct and what acts will result in termination.
Termination may occur in a number of ways:
- Voluntary termination – where the employee resigns.
- Involuntary termination – where the employee is fired.
- Mutual termination – where both the employee and employer agree to part ways.
Being stood down is a statutory right of the employer. Being stood down is not the same as termination. An employer may stand down an employee during a period in which the employee cannot be usefully employed. An employer may only stand down an employee if there is no work available for the employee and that work is of a type that is capable of being performed by the employee. If an employee is not given the opportunity to perform work that is available then the employer is likely to have unlawfully stood the employee down and they may bring an action for unfair dismissal under the Fair Work Act.
Standing an employee down is a temporary arrangement due to the lack of work available. The employee is still employed during the stand down phase, as the employer will have a view to bringing the employee back once the work load increases.
Many employees in the current COVID-19 climate have opted to rely on their statutory right to stand down their workforce until conditions improve. It can be frustrating being stood down as there has been no termination and the employee is effectively in limbo until the work returns.
Should you require assistance with your litigation matter, please give us a call for a free assessment. Our contact details are:
Berrigan Doube Lawyers
Melbourne: (03) 9600 2577
Sydney: (02) 9251 6699
Brisbane: (07) 3229 0707