Guys,
Need some help, one of the company employee resigned last Friday and requested that he be released immediately as he found a new job that start today and my boss agreed to it. He has worked less than a year and supposed to serve 1 week notice. Do the employer still need to payout the 1 week notice period to the employee by law?
Correct.
If the employer asks the employee to leave early, then it needs to be paid out.
If the employee asks to leave early, the employer is not obligated to pay out the notice period.
And you chose to ask for advice on a bargain forum? best to get some actual legal advice
You will be suprised how many lawyers there are in this forum. In true Ozbargain spirit, free advice is better than paid one.
Not necessrily free advice is sometimes the worst advice. I am not suprised, but am suprised at the divided opions from thos that are qualififed. And its always easy to take the advice that you think is right as oppose to what is legally binding.
Free advice worth every penny
Rubbish there will be lawyers on this forum as well as employers who know the laws/rules
Yes there will be, as well as an array of poeple with differing opinions
The payout is only when the employer asks the employee to leave immediately and take payment in lieu of notice and there is a period in the contract. This case is different, where the employee asked to leave immediately and the employer waived the right to require him to give notice. He didn't work for the week so why should he get paid?
Ya, that is what we think also because we actually wants him to serve his notice period. Sound stupid to pay someone when they don't work.
Was the employee casual or part/full time? If they were part/full time and the award or contract they are under states they must give 1 week notice, then you do not have to pay the employee out their 1 week pay. They automatically forfeited that by not sticking to the conditions in their award/contract.
If the staff member was casual they only need to give you 1 hour notice and you are not obliged to pay them anything.
Since you are the employer it's actually pretty bad that you had to come on a forum and ask this, you obviously need to make yourself familiar with workplace awards and obligations, which can be found on the Fair Work website or your local state commerce department if the employee is under a state award.
Actually went to Fairwork website but found nothing useful there, can't find anything related to employee wants to leave early and not serving full notice. We do knows we can payout the 1 week notice period if we wants to but in this case, we actually wants the employee to finish up his outstanding works before he goes and since he leave immediately, there are a lot of inconvenience to us. He is full time but less than 1 year of employment and need to give 1 week notice.
May I ask which award the employee is under? Regardless, if the employee left immediately and didn't want to serve their 1 week notice then they have forfeited the additional 1 week pay. You can not force the employee to stay, but at the same time they are not entitled to their 1 week notice pay if they don't serve the notice period.
We just have a standard employment agreement, it was drafted by a lawyer and mentioned that it follows the NES scheme, we are not a big company and no trade unions, so the award is not registered, but we wants to comply with the law and not get into trouble.
This sounds like a job for…. HR MAN/WOman
Small company, do not have a dedicated HR person, so I have to take care of payroll as well.
It's called forfeiture of notice.
There is a Q&A here:
https://workplaceinfo.com.au/termination/termination-payment…
That link is like spam! No details, wants you to register to look at content. UGH!
Interesting. I read the full article with no issues that's why I shared it.
I just clicked the link and see your problem.
Not knowing the actual law. I would offer this advice. In Writing
Have them sign acknowledement of this.
It will at least show you were willing to pay them, as long as they were able to work. Some smarty may later claim you forced them to leave, this way at least you show what the situation is.
Man this is common sense. The payment for lack of notice by a business is when a business terminates an employee without cause. Who in their right mind would believe that paying someone who just ups and quits for no justified reason is entitled to further benefits?? Especially considering since he quit immediately for a better job, he is not out of work for that time period.
Your boss agreed to let him go - This means you can't do anything. If your boss wanted to, and you had a contract that could be enforced, then you could only go after him legally. Things like breach of contract come to mind. But all that might do is recoup some costs and will likely be more expensive legally than is worth for whatever business you lost due to the departure a week early.
But for certain the ex-employee has no claim to further benefits from a business by quitting on the spot.
OP, Are you related to Gollum?
No.
I'm quite sure the employer does not have to pay out any notice in this context.
Normally there will be a contract specifying the contract period. If the employee did not need to give any notice, then he's fine. If he had to give notice, I believe the employer would be entitled to withhold wages for that period if employee doesn't honour it.
If he was fired I'd say yes, he resigned so he has to cop it afaik