New Employee - resigns after 2nd day

[suziewho]

Hi,
We are a software R&D company on the CBD fringe with 36 staff great facilities, lovely people and flexible conditions. We usually have a very good retention rate for this industry so it came as a surprise when this guy said he wasn't coming back after 2 days. This was via email after hours.
I don't even have him in our system yet but his contract of employment states either party can terminate during probation period with one weeks notice. Our senior engineers have spent 2 days showing him the ropes and spending valuable time making sure he had everything he needed. Our recruitment process is also time consuming as the criteria is very specific... 100% convinced we had chosen the right person!

Are we obliged to pay him anything at all?
Thanks in advance for any advice on this.

[Moz]

Are we obliged to pay him anything at all?

I'm pretty sure you are legally required to pay him the two days, but you might not have to pay super.

Others will know for certain.

While you may feel this is unfair, he may also feel that you have wasted a lot of his time. Although, it sounds to me like he got a better offer at the 11th hour ....

My advice would be to pay him for the two days, learn from the experience and move on.

[Tiger]

I'm pretty sure you are legally required to pay him the two days, but you might not have to pay super.

Others will know for certain.

While you may feel this is unfair, he may also feel that you have wasted a lot of his time. Although, it sounds to me like he got a better offer at the 11th hour ....

My advice would be to pay him for the two days, learn from the experience and move on.

____________________
Moz is correct. You have to pay him for the two days and there will be no superannuation obligation because the guy is below the threshold at which you have to pay the 9.25%. There will be some tax withheld so you'll also have to give him a Payment Summary(group certificate) and I advise sending that to him now.

It's unfortunate this has occurred but it happens more often than you realise. People accept a job perhaps thinking it is something that it is not, despite fact you will have done a good interview etc. Or, whilst negotiations with you were going on, he had other irons in the fire as well, one of which may have come home for him and he's decided to take that job instead. Many people are irresponsible and don't know any better but he could also feel a bit guilty so I endore that you just move on and put it down to experience.

Tiger

[Cottoneyes]

Note that the threshhold is currently $450 in a month to require super. Depending on his pay you may still have to pay super, so calculate the gross on the 2 days and if below $450 then you can avoid paying the super. If his base salary is above $58,000 and you pay for the 2 days, chances are you will be paying it.

Agree on paying and moving on, appears the FWA Ombudsman is being very harsh against employers withholding wages at present and it wouldn't be worth the hassle. Their view is you are meant to chase any amounts required for notice, overpayments etc through AR channels instead.

[Qld IR Consultant]

I would be more concerned about what intellectual property he has taken with him as opposed to what you should be paying him....I would pay him for the 2 days and thats it.....

[IndustrialResources]

If your business (their job) has been traditionally award free, there wouldn't be a statutory obligation for him to give a minimum period of notice, however, If his employment was covered by a MA, it may provide that an employer can withhold any amount to the value of the period of notice required to be given from 'any monies owing'.

The costs to seek a civil remedy to uphold the notice of term provisions of the common law contract would far outweigh the two days, and as Qld IR Consultant said the IP should be the concern in your line of work and may well be worth pursuing.

[suziewho]

Thanks to everyone for their advice and comments on this topic... I ended up calling FairWork to see what they had to say and they advised that as he had already signed a contract of employment agreeing to give one weeks notice during the probation period, we were not obliged to pay him as he left after 2 days with no notice. They provided a reference number should he wish to pursue the matter. I let the ex employee know this and haven't heard from him since.

[bullswool]

I ended up calling FairWork to see what they had to say and they advised that as he had already signed a contract of employment agreeing to give one weeks notice during the probation period, we were not obliged to pay him as he left after 2 days with no notice.

WoW! You serious.... you don't have to pay anything at all?? I guess we all assume we know what pay is due but until it's investigated we don't know for sure. While I acknowledge that there are notice periods that need to be provided by employer and employee I would have expected that the 2 days needed to be paid.
Thanks for the info.

[Moz]

suziewho,

Thanks for letting us know the outcome.

Can I just clarify something please?

When FairWork said you were not obliged to pay him, I presume they meant you didn't have to pay him for the notice period and were not referring to the to the two days he had worked?

[Greg Schmidt]

Most Modern Awards have a clause setting out the amount of notice of resignation that an employee must give, and setting out the right of the employer to recover money from the employee's final entitlements if the employee fails to provide the required notice. The Professional Employees Award 2010 has this provision, and I'm guessing that's probably the Modern Award that applies to a software R&D company. So in the end the employee had entitlements totalling two days' pay, and the former employer had a right to recover up to one week's pay from those entitlements. So they were correct to pay nothing.