salary

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Firing and Hiring – notice and final pay
Firing and Hiring – notice and final pay 1024 768 MJT Law - Brisbane Employment Lawyers

Most employers and employees find it really hard to discuss wages and conditions with each other.  Employers often are paying as much as their business can afford and employees can feel like their bosses are not appreciating them and their wages reflect that.  One of the questions we get asked in and around the issue of firing and hiring is the notice and final pay.

How to give notice

When your employment ends or if you are the one firing the employee the notice must be in writing and it must be given at least on the last day of work.

Employers giving notice is often no problem because the worker is generally at work to receive the notice.  But if you are trying to give notice to an employee who is not actually at work?  An employer can give notice to an employee by:

  1. delivering it personally;
  1. leaving at the last known address;
  1. sending it by pre-paid post to the last address.

Employees don’t need to provide notice in writing when resigning it is okay to just verbally tell your boss or employer that you resign.

If you do not want your employee to work out the notice period, you can pay the employee out their notice period which is called “pay in lieu of notice”.  This amount must equal the full amount the employee would have received if they had worked out their notice period this includes any employee on probation.  This includes:

  1. incentive-based payments and bonuses;
  1. loadings;
  1. monetary allowances;
  1. overtime;
  1. penalty rates; and
  1. any other separately identifiable amounts.

If the termination is due to serious misconduct then there are different rules on termination notice, but the usual payments such as annual leave, outstanding payments and long service leave still need to be paid.

Sources from Fair Work Ombudsman

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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My employee is on a salary so the award doesn’t matter right?
My employee is on a salary so the award doesn’t matter right? 1024 768 MJT Law - Brisbane Employment Lawyers

It is a really common misbelief that if your worker is on a salary then you as the employee doesn’t need to worry too much about the award.  Usually I get this question because of a genuine misconception or misunderstanding of the law rather than an employer trying to get away with something.  The truth is that the Fair Work legislation is a mine field of rights and responsibilities that even the savviest employer will get their eyebrows singed once and a while.

I think this question is best answered against an award.  I am going to use a really common one the modern award for retail employees called the General Retail Industry Award 2010 [MA000004].

This award states that there is some flexibility in the award, this means that an employer and employee can come to an agreement that must be in writing to change certain conditions of the award.  If you a mad enough to venture into the award you will find under Part 7 that this includes pay.  The tricky thing is, that under this Part if you read on it states that the new agreement

“Must result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to”

That is just legal speak for: you can’t change the conditions unless your employee is better off overall then he/she would have been if the change had not been made

It is also important to understand that if there is an issue with the pay and an employee has been underpaid then they have 6 years to recover that money.  It might not happen the moment they leave but consider the possibility that their financial position changes and a few thousand dollars is looking pretty good.

If you think that you are being underpaid or you think that your employment contract has placed your staff in positions worse off than they would have been if the agreement was not entered into then we can help.  Just give us a call and we will see what we can do.

Sources from Fair Work Ombudsman

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.