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  1. #1

    Default Resignation period

    the company has an employee who tendered 4 week resignation returned his van, phone keys etc as he didn't like he was being stood down (with pay) due to no work at that time.

    I advised to get another opinion as to the status of the employee, as we are 24/7 on call service industry, and he clearly didn't intend to work during his resignation period.
    the director advised he had and to continue to pay the resignation period, but in the meantime this employee has started another full time job but hasn't advised the company of his change of status but is asking for his resignation pay. (he did tell the service manager who was a friend but told him not to say anything but he also updated his facebook status.)

    I advised the director he wouldn't be entitled to anymore resignation pay past his new employment commencement date as he has clearly left our company.

    Any thought would be welcomed on this issue.

  2. #2
    Join Date
    Apr 2012
    Posts
    192

    Default Resignation Notice

    Quote Originally Posted by Fabsteel View Post
    the company has an employee who tendered 4 week resignation returned his van, phone keys etc as he didn't like he was being stood down (with pay) due to no work at that time.

    I advised to get another opinion as to the status of the employee, as we are 24/7 on call service industry, and he clearly didn't intend to work during his resignation period.
    the director advised he had and to continue to pay the resignation period, but in the meantime this employee has started another full time job but hasn't advised the company of his change of status but is asking for his resignation pay. (he did tell the service manager who was a friend but told him not to say anything but he also updated his facebook status.)

    I advised the director he wouldn't be entitled to anymore resignation pay past his new employment commencement date as he has clearly left our company.

    Any thought would be welcomed on this issue.
    Notice requirement for award covered employees is based on the Fair Work Act minimum notice period - ie dependent on the years of service. An employee is required to give that notice:
    Less than one year service - 1 week
    From one to three years' service - 2 weeks
    From three to five weeks' service - 3 weeks
    From five + years,it is four weeks, but if aged more than 45 yrs and with more than two years' service, add one additional week.

    If the employee fails to give required notice, employer can deduct one week's pay from termination pay. If employer requests the employee to go immediately, they must pay out the required notice. However, as long as employee has provided and worked out required notice, as per FW above, then employee is paid to, and entitlements calculated to the last physical day at work.

    If I understand the scenario described above? then if employee resigned and left immediately, thus not working out his required notice (based on his length of service) then he will lose one week's pay (deducted from termination pay) for failure to give required and work out the required notice period.
    Tiger

  3. #3
    Join Date
    Jul 2007
    Location
    Canberra
    Posts
    54

    Default

    I have to partially disagree with Tiger on a couple of points.

    The resignation requirements for employees are (mostly) similar to Fair Work Act requirements for employer notice periods, but they are actually specified in Awards, not the Act. No award has a requirement for an extra week of notice based on the employee's age. In practice, Modern Awards require an employee to provide from 1 week to 4 weeks (never 5) notice of resignation.

    Also, the penalty for an employee who fails to provide the required notice is not universally one week across all awards. Some awards still contain the older formulation of the penalty being the whole expected notice period less the amount of notice actually given. The following is an extract from the Manufacturing Award:

    The notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.

    Please consult the applicable Enterprise Agreement or Modern Award to determine the actual amount of notice that should have been given by this employee in your industry, and the employer's rights in the case of him failing to provide that notice.

    I agree that during the notice period the employee should continue "working as normal". At the very least, the employee should continue to offer his services to the employer, and should remain on stand-by for the employer if there is no work to be actively performed during this period. If there is evidence that the employee has ceased to offer their services, then they should be considered to have voluntarily ceased working. The fact that the employee returned his van, phone and keys could be considered as evidence that the employee had withdrawn his labour. If there is evidence that the employee has commenced working (without permission) for another employer, then that definitely shows that the employee has left his first employer.

    Therefore Fabsteel, I support your view that this person was no longer working for your company from the date that he commenced new full-time employment, and at most his wages should be paid up until the previous day. It's then up to your company whether you want to enforce your right to deduct any money (in accordance with the Award or Agreement) based on the employee not providing the required notice. It would be a good idea to document your evidence (Facebook screen shots, statement from Service Manager, etc) if you think that the former employee might challenge his pay calculation.

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