Termination Flashcards
* Contracts will become binding on the new employer if * The employee(s) perform substantially the same work * There is a connection between the two employers; and * Transfer of assets
s311
* Not abandoned when they walk off the job in response to a serious breach or repudiation by their employer
Claypole v Australian Native Landscapes (2007)
* Exceptions to redundancy: * Casuals * Fixed contracts * Seasonal contracts * Companies with less than 15 employees * Serious misconduct
s123(1)
* Obligations imposed on employers: * Consult with employees and unions regarding “major changes” * Provide severance pay * Provide time off to look for new employment
TCR Case
Achal v Electrolux (1993)
Notice is possible to be taken back only if said in the heat of the moment
Abandonment
employee walks off the job, fails to return from a period of leave, makes it apparent they no longer intend to be employed.
Bankruptcy
* Employees are entitled to infer that contracts have been repudiated at bankruptcy
allows for payment in lieu of notice. no implied right to pay wages in lieu of notice.
s117(2)
Also required to pay an superannuation contributions when paying in lieu of notice.
Furey v Civil Services Association (1999)
Byrne v Australian Airlines (1995)
Common law will imply term permitting reasonable notice of termination in indefinite contracts
Carer at a nursing home was on stress leave. Attempts to clarify his status enough to show he had not abandoned his employment
Karki v Kingston Gardens (2003)
Carr v Blade Repairs (2010)
Contingent contracts can be the length of a project or while funding is available
Casuals
* Assumed that casual has a separate contract for each and every shift they work * Permanent casuals - Consider to be a single, ongoing contract * In theory might be entitled to reasonable notice of termination. * Many statutes, awards, agreements exclude casuals from entitlement to notice
CFMEU v BHP (2012)
FWC may intervene after an employee retrenches over 15 employees without notification or consultation
Claypole v Australian Native Landscapes (2007)
* Not abandoned when they walk off the job in response to a serious breach or repudiation by their employer
Common law gives right to the employer to terminate the contract for any reason or for none
Ridge v Baldwin 1964
Constructive Dismissal
* When an employee resigns but because of the employers conduct * Breach by the employer of an express term of the contract * Wages * Job locations * Contractual duties; and * Job description
Common law will imply term permitting reasonable notice of termination in indefinite contracts
Byrne v Australian Airlines (1995)
Constructive Dismissal Case: Reduction of pay (substantial)
Witcher v Griffen Press (1993)
Constructive Dismissal Case: Pressured to resign
Mohazab v Dick Smith (1995)
Contingent contracts can be the length of a project or while funding is available
Carr v Blade Repairs (2010)
Contingent Term Contracts
* Variation on a fixed term contract * Contract last for a period of uncertain length * Contingent on an occurence or stipulated event * Terminated at any time by giving set period of notice
Damages
* Every breach gives a right to damages * Object is compensate for loss actually suffered * Aim is not to punish * Damages will not be awarded for any distress or humiliation * Mitigation of loss is required
Employee is entitled to resign without notice where the employer is guilty of conduct which repudiates or fundamentally breached the employment contract.
Hem v Cant (2007)
Employee may be taken to have affirmed employment contract by continuing to work in the face of wrongful conduct. No affirmation if employee makes it clear that they are working under protest.
Visscher v Giudice (2009)
Entitlements on termination
* Employees must be paid any wages or other remuneration still owing to them * Must include any accrued entitlements of annual leave and long service leave * Entitlements must be provided even if the employee has been summarily dismissed (except LSL)
Fixed term contract should stipulate that the contract can be terminated before the end date by giving “reasonable notice”
Walker v Zurich Insurance (2001)
Employment is terminated because company is being wound up, termination constitutes dismissal
Re Beverage Packers (1990)
Fixed Term Contracts
* A contract that will last for a specified fixed term * Continued employment will depend on whether the employee is offered a new contract * If an employee is allowed to work past the expiry date without putting a new contract in place, it is taken to become an indefinite employment contract
Fosters Group v Wing (2005)
Not redundancy if a position with essentially the same duties or responsibilities, to be filled by someone else.
Four months was sufficient for executive who was “middle management”.
Rogan-Gardliner v Woolworths (2012)
Frustration
Circumstances change after the formation of the contract that performance becomes impossible. Must be outside parties control. Cannot be said to be planned. Must have a radical effect on the contract. * Typically occurs when * Employee dies * Expected to be absent from work for a lengthy period * Injury * Imprisonment
Furey v Civil Services Association (1999)
Also required to pay an superannuation contributions when paying in lieu of notice.
FWC may intervene after an employee retrenches over 15 employees without notification or consultation
CFMEU v BHP (2012)
Hem v Cant (2007)
Employee is entitled to resign without notice where the employer is guilty of conduct which repudiates or fundamentally breached the employment contract.
Hill v Compass Ten (2012)
May be a series of relatively minor breaches, which taken cumulatively show a disregard for the obligations imposed by the contract - therefore able to terminate.
Ikin v Danish Club Dannebrog (2001)
Reasonable notice term will not be implied into a fixed-term contract
Karki v Kingston Gardens (2003)
Carer at a nursing home was on stress leave. Attempts to clarify his status enough to show he had not abandoned his employment
Lau v Bob Jane T-Mart (2004)
Senior managers can expect at least six months notice even if they have been in job for a short time
LHMU v Cuddles Management 2009
Notice must not coincide with a period when the employee is taking authorized leave
May be a series of relatively minor breaches, which taken cumulatively show a disregard for the obligations imposed by the contract - therefore able to terminate.
Hill v Compass Ten (2012)
Mohazab v Dick Smith (1995)
Constructive Dismissal Case: Pressured to resign
must give at least the minimum period of notice
s117
North v Television Corp (1976)
Party has the right to terminate in “response to any fundamental breach or repudiation”.
Not redundancy if a position with essentially the same duties or responsibilities, to be filled by someone else.
Fosters Group v Wing (2005)
Notice does not apply when employee is guilty of serious misconduct
s123(1)(b)
Notice is possible to be taken back only if said in the heat of the moment
Achal v Electrolux (1993)
Notice must not coincide with a period when the employee is taking authorized leave
LHMU v Cuddles Management 2009
One months notice was reasonable for a senior manager leaving his employer
Zuellig v Pulver (2010)
Party has the right to terminate in “response to any fundamental breach or repudiation”.
North v Television Corp (1976)
Probationary Periods
* Can be viewed as a fixed-term contract * If unsuccessful, employer can refuse to offer further employment
Provision requiring the employee provide a minimum period of notice
s118
Quinn v Jack Chia (1992)
Senior managers with longer service can expect 12 months
Re Beverage Packers (1990)
Employment is terminated because company is being wound up, termination constitutes dismissal
Reasonable Notice
Depends on the circumstances at hand, such as length, seniority, position, age, anything given up, and the anticipated duration of employment
Reasonable notice term will not be implied into a fixed-term contract
Ikin v Danish Club Dannebrog (2001)
Redundancy
* Not on account of any personal act or default of the employee… but because the employer no longer wishes the job the employee has been doing to be done by anyone. * Key to redundancy is the disappearance of a job or position. * Three main reasons for redundancy: * Introduction of new technology * Restructuring the organisation * Reduction of the workforce
Redundancy payments
s119
Minister for Employment v Gribbles Radiology (2005) at 48 -
No employee is an asset in the employers balance sheet to be bought and sold
Ridge v Baldwin 1964
Common law gives right to the employer to terminate the contract for any reason or for none
Rogan-Gardliner v Woolworths (2012)
Four months was sufficient for executive who was “middle management”.
s117
must give at least the minimum period of notice
s117(2)
allows for payment in lieu of notice. no implied right to pay wages in lieu of notice.
s118
Provision requiring the employee provide a minimum period of notice
s119
Redundancy payments
s123(1)
* Exceptions to redundancy: * Casuals * Fixed contracts * Seasonal contracts * Companies with less than 15 employees * Serious misconduct
s123(1)(b)
Notice does not apply when employee is guilty of serious misconduct
s311
* Contracts will become binding on the new employer if * The employee(s) perform substantially the same work * There is a connection between the two employers; and * Transfer of assets
Senior managers can expect at least six months notice even if they have been in job for a short time
Lau v Bob Jane T-Mart (2004)
Senior managers with longer service can expect 12 months
Quinn v Jack Chia (1992)
Summary Dismissal
* Exception to any requirement to give notice of termination. Exercised when there is a serious breach of the contract. * Lies in the general law of contract
TCR Case
* Obligations imposed on employers: * Consult with employees and unions regarding “major changes” * Provide severance pay * Provide time off to look for new employment
Termination by operation of law
- Frustration 2. Sale of business 3. Liquidation of business 4. Breach
Transfer or Employment
* Fundamental principle of common law is employees cannot be transferred from one employer to another with consent * Up to the new employer whether it offers fresh employment contracts to some or all of the existing workers.
Unlawful termination
* prohibit the dismissal of an employee for certain reasons * Gender * Race * Union membership
Visscher v Giudice (2009)
Employee may be taken to have affirmed employment contract by continuing to work in the face of wrongful conduct. No affirmation if employee makes it clear that they are working under protest.
Walker v Zurich Insurance (2001)
Fixed term contract should stipulate that the contract can be terminated before the end date by giving “reasonable notice”
Ways employment contracts can end:
* Pre-arrangement: date or task ir reached * Exercising unilateral rights * Mutual agreement * Employee abandoning employment * Operation of a legal rule
Witcher v Griffen Press (1993)
Constructive Dismissal Case: Reduction of pay (substantial)
Zuellig v Pulver (2010)
One months notice was reasonable for a senior manager leaving his employer
