Let’s face it – for many employers there is likely to be a disproportionate amount of attention that is paid to the point of termination of the employment.  It’s not difficult to understand why.  It’s a clear point where interests will diverge, where conflict is likely, and it’s the most obvious point in the relationship where a claim may follow.

With that acknowledged and with most of the attention being focused on the substance of the reasons and process, there are several things which are often overlooked, or misunderstood.  While the Courts are by no means full of applications about these issues, good employers ensure their systems automatically address these risk-points and neutralise the leverage they can sometimes provide to employees.

1. The timing of written notice is important. Other than in exceptional circumstances, the first notification an employee will receive that their employment is being terminated will be delivered verbally.  In most situations, written notification will be sent after the meeting.  There’s lots of good reasons why this is the case, and why that can be important.  At the same time, it’s also important to keep in mind that the National Employment Standards dictate that the termination date cannot be before the day the written notice is given.  Put simply, written notice needs to be given before, or on the day, the employment ends.
2. Payments in lieu should made on the termination date: It’s not uncommon for employers to exercise their right to make a payment in lieu of notice, rather than requiring the employee to work the notice period.  In that circumstance, the National Employment Standards states the employer “must not terminate” the employment unless the employer “has” made the payment in lieu of notice to the employee.  Expressing this differently, if the employment is terminated without the payment in lieu having been made, the employer will not have complied with the NES, and therefore the Act.
3. Dismissing summarily (when it’s not serious misconduct) can have a further sting in the tail. Dismissals for serious misconduct are a widely known exception to the requirement of the National Employment Standards to provide the required notice period (or to make an equivalent payment in lieu), before the employment terminates.  While widely known, the narrow limits of the exception are often misunderstood, leaving some summary dismissal to be a ‘line ball’ call.  While getting that call wrong will almost always result in a dismissal being found to be unfair and a requirement to pay the notice period, the failure to provide the required statutory minimum notice period before termination will also constitute a failure to comply with the requirements of the National Employment Standards.

Ultimately, any failure to comply with the National Employment Standards can constitute a breach of the Act exposing the employer to civil penalties.  Any individuals who were involved in a proven breach may also be found to be liable as an accessory and thereby exposed to personal civil penalties.

Practically speaking, non-compliance with these requirements in isolation is unlikely to lead to litigation itself, but there is a growing tendency for dismissed employees to add ‘technical’ breaches to otherwise weak applications as a means of providing substance, and more outcome certainty.  For example, adding a provable ‘technical’ claim to an otherwise weak general protections application may be used to add legitimacy, and to capture an employer’s attention in circumstances where other aspects of the claim might be disregarded.  Building systems to remove the occurrence of a ‘technical’ breaches therefore delivers potential dividends for employers across multiple risk-points.