|
The employment relationship is contractual
in nature and can be terminated in the usual
ways. Generally, the employer or employee
must give notice of termination. If the
period of notice is not defined in the contract
of employment, it must be imputed from the
circumstances. For example, where wages
are on a weekly basis, reasonable notice would
be one week. This is, of course, subject
to any special legislation or industrial
awards. The death of either party, and in
some cases, physical incapacity of the
employee, will terminate a contract. The
bankruptcy of either party does not
automatically terminate the contract of
employment.
The employer can terminate the contract
without notice where the employee acts in such
a way as to be in actual or anticipatory breach
of a condition of the contract, or the employee
is neglectful or incompetent.
Industrial legislation in most jurisdictions
allows an employee to seek reinstatement or
damages for unfair dismissal.
The Workplace Relations Act (Cth) deals with
unfair dismissals. Where an employee who
is within the jurisdiction of the Act is
dismissed and considers that the dismissal was
harsh, unjust or unreasonable, the employee can
apply to the Australian Industrial Relations
Commission to resolve the claim. The Act
also sets out a number of discriminatory
grounds upon which it is unlawful to terminate
employment. These are:
- temporary absence from work due to
sickness or injury;
- membership or non-membership in a
union;
- acting as an employee’s
representative;
- involvement in proceedings against an
employer regarding a breach of law;
- race, colour, sexual preference, age,
physical or mental ability, marital status,
family responsibilities, pregnancy,
religion, politics, nationality or social
background; or
- refusal to sign or negotiate an
Australian Workplace Agreement.
The Act also provides rights for independent
contractors to apply for variation or setting
aside of harsh and unreasonable contracts for
services.
There are comparable provisions under state
legislation.
The General Employee Entitlements and
Redundancy Scheme (GEERS) protects the
interests of employees who who were terminated
from their jobs on or after 12 September 2001
as a result of their employee becoming bankrupt
or insolvent. This replaces the Employer
Entitlements Support Scheme, that protected the
interests of employees where an employer was
declared insolvent between 1 January 2000 and
11 September 2001.
|
