Australia Law

Have Australian law questions? Ask a lawyer now.

Ask a Lawyer,
Get an Answer ASAP!

I am the HR Manager for a Qld based Construction Co - i have…

Customer Question
Hello i am the...

Hello i am the HR Manager for a Qld based Construction Co - i have an employee that was in January promoted to a more senior role, then at the end of May returned to his original position - due to poor performance in the new role ( unfortunately the performance management has not been documented) He has been working with our company since May 2017 he earns 120 K per year plus car allowance of 20K he is in a sales mgmt role

Lawyer's Assistant: Have you discussed this with your HR staff? Or with a lawyer?

I am the hr manager - but i am looking for confirmation of my understanding He resigned on 25th June giving notice open ended with cut of Sept 1st Am i correct to accept the resignation and in good faith give one months salary and exit him the same day

Lawyer's Assistant: Is your employee "at will?" Does he belong to a union?

No union

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

We have had a number of issues with his behaviour and his performance thats all

Submitted: 1 month ago.Category: Australia Law
Show More
Show Less
Ask Your Own Australia Law Question
Answered in 17 hours by:
6/30/2018
Solicitor: John Melis, Lawyer replied 1 month ago
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,566
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified
Hi, I’m John a solicitor from Melbourne. I may ask you a few questions to narrow the issues you have raised.
Ask Your Own Australia Law Question
Solicitor: John Melis, Lawyer replied 1 month ago

There are a couple of points that need to be taken into account of the employee removal.

[1] Where there is an employment agreement, which permits the employee to terminate the employee at will (anytime) then under this circumstance the employer will be able to payout ones notice and terminate the employee.

[2] Where there is no employment contract or the employment contract is silent on the matter of point 1 above, the employee is entitled to be paid out for the full resignation notice.

This means the employee is entitled to be payout until the September end date.

[3] Where you want the employee to be terminated as soon as possible, you will need to enter into negotiation with the employee to come to an agreement for an early termination fee.

[4] Whichever option is chosen in this circumstance you are dealing with it is suggested that the employer enter into a dee of release with the employee, to protect the employer from being claimed against at a later date by the employee for any potential beaches under the Fair Work Act that may have occurred.

You have a legal right to protect your interests in this important situation.

If you need any further information let me know and I will be pleased to assist.

You can come back to this post any time to ask questions and there will be no further charges to you.

Don’t forget to rate me 5 stars as this supports me helping the community, and your important questions.

Have I answered your question today ?

Ask Your Own Australia Law Question
Customer reply replied 1 month ago
thankyou - would you be able to provide me with a deed of release wording so that i can place it into his final letteralso - we do not have any confirmation in his letter of offer - we only have our company policies which he has signed and which say the followingTERMINATION OF EMPLOYMENT (REFER ALSO TO THE TERMINATION POLICY)
Should you wish to resign from your position with Taiyo Membrane Corporation, you are required to provide us with the relevant notice period. mroeSimilarly, your employment may be terminated by Taiyo Membrane Corporation Company, on provision of notice, as referred to in the above table. If the employee has more than 2 years continuous service and is over 45 years of age at the date of termination, an additional weeks’ notice shall apply. Notice may be given or paid in lieu (or part given and part paid) at the discretion of TMC. In cases of serious misconduct immediate termination of employment will apply; in such cases no notice is applicable.
Company owned items and /or equipment in your possession must be returned prior to the transfer of final salary / wages payment
Customer reply replied 1 month ago
more than 1 year - less than three ( which is applicable to this employee) 2 weeks notice
Solicitor: John Melis, Lawyer replied 1 month ago

Thank you for the follow up. The deed of release is a separate document to the final letter. The deed has to be drafted specifically for the purpose to which it is used. There are standard precedents that you can obtain on line from various providers but each deed needs to be tailored. The deed on average is about 5 pages long and needs to be drafted for the protection of the employe based on the type of industry the employer is in.

The two weeks notice in your last sentence will come into conflict with the long notice that the employee has given, which could result in a claim if unfair dismissal.

The quickest option to remove the employee is to make that position in the company redundant.

Ask Your Own Australia Law Question
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a solicitorLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask John Melis Your Own Question
John Melis
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 3,566
3,566 Satisfied Customers
Experience: Principal Lawyer at Legal AU Pty Ltd

John Melis is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Deborah Awyzio

Deborah Awyzio

Solicitor

863 satisfied customers

Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience

Sean

Sean

Experienced lawyer

855 satisfied customers

Law degree with 1st class honours from Australian National University.

James G.

James G.

Lawyer

17 satisfied customers

Australian Legal Practitioner

Darren Kruse

Darren Kruse

Solicitor

16 satisfied customers

Practising in in Personal Injury, Workcover, Civil Disputes, Family, Wills and Estates and Criminal law.

Leon

Leon

Solicitor

27,790 satisfied customers

BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

Daniel

Daniel

Solicitor

5,976 satisfied customers

Bachelor of Laws (dist) Graduate Diploma in Legal Practise. Admitted NSW Supreme Court / High Court

John Melis

John Melis

Lawyer

3,566 satisfied customers

Principal Lawyer at Legal AU Pty Ltd

< Previous | Next >

Related Australia Law Questions
I am currently undergoing formal HR process and alleged
I am currently undergoing formal HR process and alleged unprofessional behaviour complaints, supported by my line Manager. If founded outcome will be termination or performance management process. I h… read more
Daniel
Daniel
Solicitor
Bachelor's Degree / Graduate Diploma
5,976 satisfied customers
I received the results of an HR investigation in which they
I received the results of an HR investigation in which they admit I have a bona fide complaint but their way forward which they say is fairest way doesn't ring true for me, as they haven't really addr… read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
I have been given a genuine redundancy from my employer. The
Hi. I have been given a genuine redundancy from my employer. The issue I have is that 6 months ago, a contractor was bought in to take over my role. There was no performance management, no issue with … read more
Daniel
Daniel
Solicitor
Bachelor's Degree / Graduate Diploma
5,976 satisfied customers
I have had ongoing harassment and humiliation issues with my
I have had ongoing harassment and humiliation issues with my boss to the point of depression and medical intervention. I have involved HR and my boss's Manager over the last six months but wasn't part… read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
i need some advise about my manager and his behaviour. Not
i need some advise about my manager and his behaviour. Not sure what to do and its affecting me.… read more
Ben Jones
Ben Jones
Solicitor
Legal Practice Course
1,518 satisfied customers
Hi I work for a large company that recently forced a redundancy
Hi I work for a large company that recently forced a redundancy on one of my staff against my advise. The decision was made without my consultation and i advised strongly against it when advised of th… read more
Havenlawyer
Havenlawyer
2,531 satisfied customers
I have been an Account Engineer for 4 years and have had regular
I have been an Account Engineer for 4 years and have had regular performance appraisals (6 monthly), always with overall "meeting expectations", inlcuding some "exceeding expectations". Today my manag… read more
Sean
Sean
Experienced lawyer
Bachelor of Law with First Class Honours
855 satisfied customers
Hello, The company I work for is making me find a new position
Hello, The company I work for is making me find a new position within the organisation. I have reported to a certain mgr for over 2 yrs when he came to my desk and said "I'm looking at moving you out … read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
Hello, I am an executive in a large Telecommunications Company
Hello, I am an executive in a large Telecommunications Company and I've just received tonight a separation agreement that I'm required to execute that I'd appreciate you having a look over and providi… read more
Alex
Alex
Lawyer & Solicitor
Master
11,225 satisfied customers
Im in a Senior Management role and I have outstanding performance
I'm in a Senior Management role and I have outstanding performance in all areas of my work which is all measured through profits, sales, business improvements and compliance. I look after Marketing, Q… read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
Hi Ive recently been off work with mental health issues from
Hi I've recently been off work with mental health issues from my company Perpetual. I was off work from Sept 2010 to December 2011 on income protection (Salary Continuance) on a policy with AIA atttac… read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
Hi , I am a senior finance manager who has not received appropriate se
Hi , I am a senior finance manager who has not received appropriate senior management support or HR support during a HR complaint process which took far too long to finalise. It involves a dysfunction… read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
Hi. My position was made officially redundant about four weeks
Hi. My position was made officially redundant about four weeks ago. I was managing a team and the team was disbanded. The CIO told me that I was not impacted as he wanted to keep me in the company but… read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
I was employed by a manufacturing firm with approx 100 employees
I was employed by a manufacturing firm with approx 100 employees for almost nine and a half years - for the last few years I have been the HR and Rehab Coordinator and for two periods totalling 16 mth… read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
Yesterday I was called to a meeting with my manager and a HR
Yesterday I was called to a meeting with my manager and a HR Manager, the meeting started with questions about whether I was happy in my job, I answered "reasonably, why" My manager then proceeded to … read more
Leon
Leon
Solicitor
Master's Degree
27,790 satisfied customers
My company is involved in restructuring. We had a meeting where
My company is involved in restructuring. We had a meeting where the MD and SE Director offered voluntary redundancy to the Sales Force and we have all been asked to apply for our jobs, they were quest… read more
Alex
Alex
Lawyer & Solicitor
Master
11,225 satisfied customers
Hi; Im interested in getting an understanding of whether my
Hi; I'm interested in getting an understanding of whether my predicament represents some form of technical redundancy and therefore whether I have legal standing to push for a retrenchment package. In… read more
Maurice
Maurice
Lawyer
Master's Degree
1,980 satisfied customers
Agricultural Management Position in Qld, 125 k p/a, position
Agricultural Management Position in Qld, 125 k p/a, position held - 3.5 yrs, behaviour of CEO results in very difficult, challenging workplace environment, employer company likely to be trading insolv… read more
Maurice
Maurice
Lawyer
Master's Degree
1,980 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x