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Types of termination of employment

It may be difficult for the parties in an employment relationship to say exactly how the employment relationship was terminated. This can be even more challenging for a court or tribunal to determine.

Where an employee resigns, there may be issues of constructive dismissal (i.e. that the employee was forced to resign). Where an employer makes an employee redundant, there may be a question as to whether the redundancy was genuine – if it was not, the employee may challenge it as an unfair dismissal.

An employer intending to dismiss an employee must follow certain procedures but is justified in dismissing an employee without notice (summary dismissal) in certain circumstances. Where a dismissal at the initiative of the employer is not in accordance with the law, the employee may have a claim under the unfair dismissal, general protections, or unlawful termination provisions of the Fair Work Act.

Either party may have repudiated the contract, such as where an employer fails to pay wages, or an employee fails to turn up for work. Which party repudiated first? This situation highlights the importance of the timing of events surrounding the termination, and of keeping records of the events as they unfold. The date of termination is also crucial for matters such as time limits on making a claim, whether a minimum employment period (a necessary element for making some claims) has been satisfied, and amounts of money payable for matters such as final pay.

An important High Court decision on the repudiation of the contract of employment is Visscher v Giudice [2009] HCA 34.

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