Ending Work What do I do if I want to quit? Should my working hours change once I give my termination notice? What happens if I don’t give a reasonable notice period? What happens if I’m fired? Can I be fired on the spot? What is the right procedure for dismissal? What is being made redundant? I’m being made redundant, what is the process? Am I entitled to payment or compensation for being made redundant? What happens if my employer is selling their business? Does my job have extra protections in a redundancy? Can I decline the offer to work for the new employer?
Ending employment relationship does not have to be stressful and difficult. There are a few ways that the employment relationship can end. Whether the employee is resigning or dismissed, it is important for both employer and employee to follow the employment agreement. In the absence of a written employment agreement, both employer and employee must still act reasonably and in good faith.
You can quit your job by giving the appropriate notice and following the termination procedure in your employment agreement.
If your employment agreement does not specify the appropriate notice and/or termination procedure, it is common to give 2 to 4 weeks of notice in writing depending on the industry standard, but it is best to have a talk to your employer first.
The period of reasonable notice depends on a number of factors such as what type of job you have and how long you have worked in your position for. It is important to give a reasonable notice period so that the employer can prepare for your absence and have time to replace you.
After resigning, you should be able to work out the notice period at your normal working hours. Your hours should not increase or decrease. The employer may decide to pay you out for the notice period instead of getting you to work out the notice period – this means that they can choose to not have you work out the notice period, as long as they pay you as if you had worked out your notice. You yourself, however, can’t choose to be paid out without working it out unless your employer consents.
If you fail to give reasonable notice period and/or work out the notice period in your employment agreement, you may have to forfeit a part of your wages and the employer may claim for the money equivalent to the extra cost you have placed on them by your unreasonable notice period. However, the employer is not able to withhold your wages and/or holiday pay without your written consent.
The employer may dismiss an employee if there is a good reason, but the employer must follow the right procedure in making the dismissal. The employer should generally give you an appropriate notice period which is usually specified in the employment agreement, but if there isn’t one, then a reasonable notice period of 2 – 4 weeks. If performance issues are the reason for dismissal, the employer should have given adequate warnings, guidance and opportunities for the employee to improve before dismissing the employee.
If the employer hasn’t followed the proper procedure in conducting the dismissal, the employee may be able to raise a personal grievance against the employer.
The employer may dismiss an employee without notice for serious misconduct. Serious misconduct is when an employee’s behaviour has undermined or destroyed the employer’s trust in them and impacted the employee’s ability to do their job. This is a high standard which will not be met in many situations.
The employment agreement or internal company policies may include a list of employee behaviours or actions which the employer may consider as serious misconduct. Examples of serious misconduct include:
However, what is considered serious will differ between employers. If the misconduct is not serious, good practice would require warnings to be given before attempting to dismiss an employee.
The steps that an employer should take before dismissing you are:
If after all these steps the employer still thinks it’s reasonable to dismiss you, they can do so with a notice period. If the problem is less serious, they should give you a warning instead.
Being made redundant is when your employer decides that your position is no longer needed or there is a genuine commercial reason to discontinue your position. Examples of commercial decisions include:
You can’t be made redundant because of poor work performance or personal reasons. Sometimes whole departments are made redundant, but often only parts of the department are made redundant. A correct procedure must be followed when making redundancies.
If your employer is proposing to make your position redundant, they must:
· consult with you and anyone else in your position first;
· give all of you the relevant information about why they’re changing their business structure; and
· listen to what everyone has to say.
After all of this, they should only use redundancy as a last resort.
If not everyone in your position is being made redundant, everyone must have a fair chance to stay. Consulting with you might mean considering offering you another job elsewhere in the company or possibly providing assistance to help you find another job.
Your employer must also give you reasonable notice of redundancy dependent on your particular circumstances and the business’ circumstances. If your employer knew about the need for redundancies several months ago, it would be unreasonable to give you one week’s notice. If the company suddenly went down, it would be much more difficult to provide you with a notice in those circumstances.
You are usually only entitled to payment or compensation for being made redundant if there is a clause in your employment agreement saying that you are. This means that if you do not have an employment agreement, or there is no clause in your employment agreement on payment or compensation for redundancy, you are probably not entitled to be paid for redundancy. However, it may also depend on the business’ financial circumstances at the time of your redundancy because, if the company has no money and liquidates, they will not be able to pay you
Your rights in terms of continuing employment with a company might depend on whether the business is being sold through an asset sale or a share sale.
In an asset sale, the purchaser buys the property of a company which then goes out of business. However, employment agreement and employees cannot be sold. This means that the sale results in a termination of your employment. The new owner may then choose whether they wish to employ you.
In a share sale, the owners of the company change but the company itself remains the same. This means that employees can continue to be employed by the company with the same employment agreements, leave balances, employee liabilities and any employment relationship problems.
Additionally, unless your work falls within specified vulnerable employee industries (e.g. cleaning, food catering, caretaking, laundry, or orderly services), there is no general right for an employee to automatically continue with the new owner of a business. Even if a new employment agreement is offered, there is no right to be offered the exact same terms and conditions as your current job by the new owner.
Your employment agreement should, however, include a procedure of how the employer should act if the business is sold. The process will involve:
• the employer talking to you about the sale as soon as is reasonably possible; and
• telling you whether your position will continue with the new employer and under what terms, or whether there will be a redundancy.
If you work in specified vulnerable employee industries, there are some further protections.
Your employer must give you the opportunity to choose whether you want to work for the new employer on the same terms. If you accept, you are not entitled to redundancy pay.
If the new employer wants to make you redundant, they must follow the redundancy clause in your contract. If there is no redundancy clause, the new employer must bargain with you to reach an agreement.
If you choose to work for the new employer under the same terms and conditions, your employment is treated to be continuous and the new employer cannot put you on a 90-day trial period.
Yes, you can choose not to work for the new employer. You have the right to accept or reject the transfer of your employment to the new employer. If you choose to decline and your employment agreement has a redundancy package, you may be entitled to the redundancy package.