TERMINATION OF EMPLOYMENT

Employee obligationsThe common law imposes a number of obligations onemployees even where those obligations are not expresslystipulated in the employment contract or otherwiseany industrial instruments. These obligations includethe obligation of an employee to behave honestly, therequirement that the employee perform their work to thebest of their ability, the obligation to act in the interests ofthe employer and the obligation to follow reasonable andlawful directions. Where those obligations are breached,an employer may, subject to applicable procedural issues,have the right to dismiss the employee, depending uponthe nature and circumstances of the non-compliance.Dismissal of an employee is normally grounded on one ofthese types of implied duties.Workplace policies about behaviour may also form a basisto dismiss an employee where there is a breach of thepolicies by the employee.Conversely, an employer has obligations to its employeesincluding a duty to pay the employee an agreed orstipulated amount of remuneration and a duty to takecare for the employee’s safety. More recently, AustralianCourts have considered whether an employer is actuallyunder an obligation to provide work to an employee ratherthan simply pay them the agreed or stipulated amountof remuneration. This is relevant when consideringsuspending an employee on full pay or if putting anemployee on garden leave (that is, paying the employeebut directing them not to perform any work).Employers should also consider any obligations owed,either by the employer, or the employee, in any writtencontract of employment.Discrimination and general protectionsWhen dismissing an employee, employers also need toensure that a reason for the dismissal (even if not the onlyreason) did not include certain protected attributes of thatemployee, set out under state and federal discriminationlaws or under the general protections available under theFW Act including:• Race, ethnicity, colour, natural extraction or social originor religion.• Age.• Physical features or characteristics.• Disability or impairment.• Temporary absence due to illness or injury.• Sex or sexual preference.• Pregnancy, carer or family responsibilities, or parental orcarer status.• Marital status.• Having a role as a union delegate or OH&Srepresentative.• Political opinion.• Union membership or being involved in industrialactivities.• Making a complaint about occupational health and safetymatters or conditions of employment.A temporary absence is where the absence is not morethan 3 consecutive months or 3 months in a 12 monthperiod and where the employee is not on paid sick leavefor the duration of the absence.DLA Phillips Fox | 3