Employees - Questions & Answers with our solicitors

Posted on 06 September 2011

Question

I was away from work for 3 days due to the flu. I was so sick that I couldn’t get to the doctor's or answer the phone or the front door. When I returned to work the Employer told me that I was no longer employed there because I had “abandoned” my employment. 

Answer
    
In order to justify their determination that you had truly abandoned your employment your Employer would have to prove that it was reasonable for them to have come to this conclusion. Your Employer would have to show that no other legitimate explanation, like sickness, was possible. Even if they could prove that their determination was reasonable your Employer would have to show why it was not feasible for you return to your old position after such a short period away.

Question
    
My position has been made redundant. My employer doesn’t have another positions for me.  What payments am I entitled to? 

Answer    

This is a complicated situation and there isn’t a simple or singular answer. It depends on the type of employment you held, the terms of your contract or any relevant Award, how long you have been employed and the size of your employer. If you are a full time employee you will generally be entitled to your annual leave, long service leave (where you have been employed continuously for more than 5 years), notice and a severance payment (if employed for more than a year). If your position becomes redundant call us for advice.

Question
    
What should I do if I am issued with a written warning? 

Answer
    
Make sure that you read it carefully and ask for explanations of anything that you don't understand. If you do not agree with something in the letter you should respond in writing (by letter or email) and keep a copy of your response. If you have a meeting with your employer, ask for an agenda and that an independent witness be present and keep notes of what happened in the meeting. Contact us for advice.

Question
    
My employer has requested a meeting to discuss my performance; I am scared I will be given a written warning.  Can I refuse to go?

Answer
    
No you cannot refuse to go to the meeting.  If you refuse then you may be deemed to have refused to carry out a lawful and reasonable instruction that is consistent with your contract of employment. Your refusal can then be the grounds for the finding of serious misconduct.

Question
    
If I lodge a claim for Unfair Dismissal but then find another job before I go to Court, how will that affect my claim? 

Answer
    
In an Unfair Dismissal matter you can only claim for the actual loss (or potential loss) you have (or may) suffer(ed) to a maximum of 6 months pay. So if you find another job that pays the same or more than you were previously earning, you would only be able to claim for the period that you were unemployed and not receiving an income. If the job pays less that what you were earning, you can still claim the loss you would be suffering (the difference between the two rates of pay) for the 6 months after your dismissal.

Please note however, there is an obligation at law for you to actively look for work if you have been dismissed and you commence Unfair Dismissal proceedings. If you do not look for work (i.e. you make no attempt to mitigate/reduce your loss) the Tribunal will take that into consideration when assessing any amount of compensation to award you.

Question
    
My employer sent me a text message this morning saying I do not need to come back to work and I was fired. Can they do that? 

Answer
    
An employer should always communicate a termination in person to allow the employee an opportunity to respond to the reasons to terminate their employment. In exceptional circumstances for example, if the employee does not come into work, where the employee has engaged in behaviour that is misconduct (e.g. theft) or where there is a genuine risk of violence, the employer may be justified in terminating an employee in a manner other than in person.

Question    

I was performing badly and so my employer terminated me? They did not offer to help me or give me training.  Is that fair? 

Answer
    
Even if your performance was poor you may still be entitled to bring an Unfair Dismissal claim because your employer did not follow a fair process. The dismissal may be harsh if the employer did not tell you there were performance issues, tell you what you need to do to improve your performance, provide you with reasonable targets and time frame to improve your performance and tell you that you are at risk of termination if you failed to improve.

Question    

I was terminated on the spot for serious misconduct and not paid any notice period.  Can my employer do this? What is serious misconduct?

Answer
    
Serious misconduct is wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment. If you are guilty of serious misconduct you can be terminated without notice. Your employer must still follow a fair process, conduct a fair investigation, tell you the allegations against you and give you an opportunity to respond to the allegations before making a decision to terminate you. 

If you need to discuss an employment issue, please contact us. 

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