Advice for Changed Employment Conditions

Summer, and a new COVID-normal era, is fast approaching but businesses must ensure they keep up to date with changes in legislation and modern awards. Due to the current circumstances, many employers are changing the way they operate and finding the need to reduce roles. If you are considering changing any employment conditions, or terminating an employee, it’s vital you inform yourself of how and when you can do so.

Resignation
A resignation occurs when an employee expresses their intention to no longer be bound by the contract of employment. Typically, the communication is accepted in writing. Before an employer accepts the resignation, they should consider whether the employee has met the notice requirements under the relevant modern award, Enterprise Agreement, or employment contract.

Be aware…
Fair Work legislation protects employees from ‘forced’ resignations. A valid resignation is at the initiative of the employee and not as a result of duress or a situation where the employee felt they had no other option but to resign.

Dismissal
When the employer chooses to end the employment relationship, in legal terms the employee has been dismissed “at the initiative of the employer”. The reason may be because of unsatisfactory work performance, misconduct, operational requirements, or long term absence due to injury or illness.
When considering dismissing an employee, Employers need to ensure they follow a ‘best practice’ process which is heavily driven by legislative requirements. This can help defend a claim if one is lodged at the Fair Work Commission (FWC) and also safeguard the reputation of the business. Employers should also be aware that discrimination legislation prevent employees from being treated unfavourably because of a protected attribute. Therefore, dismissals need to be conducted fairly and consistently throughout the business.

Be aware…
The FWC operates with discretion when considering whether a dismissal was ‘harsh, unjust or unreasonable’ and can take other relevant matters into consideration such as the length of service and age of an employee and the level of HR expertise within the business.

Professional advice
If you are considering making major changes to your business we strongly urge you to speak to the Victorian Chamber of Commerce and Industry first. The Victorian Chamber can provide you with advice, support and strategies to ensure your approach is compliant so as to limit and mitigate the risk of employment related claims. 

The Victorian Chamber has a strong team of professional workplace relations consultants with a wealth of experience advising and assisting members considering and implementing workplace changes. The Victorian Chamber consultants can assist your business to navigate the challenging nuances of the employment relationship.

In addition, the Victorian Chamber offers over-the-phone advice through the Workplace Relations Advice Line who can provide immediate, professional guidance around how to handle matters.

The services of the Victorian Chamber include:

• Managing the performance, conduct and termination of your employees

• Statutory and regulatory requirements

• Pre-empting and addressing potential grievances and disputes that may arise from such proceedings

• Facilitating mediations and disciplinary proceedings

• Representation when claims have been made

For more information about being a member please contact the membership team at the Victorian Chamber on 8662 5333. Alternatively, to talk to the Victorian Chamber consultants about employment termination matters. You can reach them online or by calling the Workplace Relations Advice Line on 03 8662 5222.

Stephanie Beckett
Senior Workplace Relations Advisor (Business Partner)
Victorian Chamber of Commerce and Industry