Ending employment and exit interviews

Employment can end voluntarily or through redundancy,

contract end, resignation or termination. As an employer there are steps you will need to take to comply with
the law and to ensure your business continues as usual. Create policies in your HR manual and become
familiar with the National Employment Standards (NES) and your employee awards will help make the
process easier.

Exit Interview
This is an ideal opportunity to discover from departing employees how you can improve the business.

Use our sample exit interview template for examples of questions you should ask during an exit interview.
You can adjust the questions to fit your company's needs.

Exit Interview Template (DOC 226.5 KB) HYPERLINK

"http://www.business.vic.gov.au/__data/assets/word_doc/0018/20709/exit-interview-template.doc"

Employer's tasks for the employee's last days at the business:

write a reference or statement of employment

set aside time for a thorough handover of duties, and if necessary, get them to report in writing any
unfinished projects or tasks where lots of detail is involved, e.g. where they saved the files for project XYZ

fill the job so they can train their replacement in the role

set up an exit interview.

once the employee has left cancel their computer codes and passwords

on their last day, make sure they return security passes, uniforms, safety gear, laptops etc.

General record keeping reminders:

calculate final payments such as annual leave and accrued long service leave

find out about employee termination payments on the Australian Tax Office website

pay the remaining superannuation payment

remember to include their pay as you go (PAYG) withheld amounts in your next BAS

collect any information now for your next fringe benefits tax (FBT) report

if a WorkSafe injury insurance claim is current, tell WorkSafe

make sure you have their contact details so you can send them their statement of earnings at the end of the
tax year.

Redundancy and retrenchment

When making a position redundant or retrenching staff an employer is responsible for
following the Fair Work Act 2009, conditions under the National Employment Standards
(NES) and any other employee awards or contracts. Use the checklist for redundancy to
 make sure you cover your legal obligations and consider all your options.

The Business in Transition Support (BiTS) program is designed to help businesses facing
redundancy and retrenchment and can be contacted to organise an information session for
employees. Please email the HYPERLINK "mailto:bits@dbi.vic.gov.au"BiTS
HYPERLINK "mailto:bits@dbi.vic.gov.au" team to organise an information
HYPERLINK "mailto:bits@dbi.vic.gov.au"sessionand use the information below to
ensure you meet your obligations and provide employees with everything they need.

What is the difference between redundancy and retrenchment?

What are genuine reasons for redundancies?
Main steps for an employer looking at redundancies or retrenchments
What makes up an HYPERLINK "http://www.business.vic.gov.au/operating-a-
business/employing-and-managing-people/ending-employment/redundancy-and-
retrenchment"employees HYPERLINK "http://www.business.vic.gov.au/operating-a-
business/employing-and-managing-people/ending-employment/redundancy-and-
retrenchment" final payment?

Create a redundancy pack for your employees

What is the difference between redundancy and
retrenchment?
In simple terms, the employer makes a position redundant when its duties are no longer
needed to be done by anyone. Once the position is redundant, the person doing its duties
may either be redeployed (i.e. given another job) or retrenched (i.e. lose their job and
not be offered another).

Reasons for making a position redundant

Simply dismissing a member of staff does not necessarily make it a genuine redundancy.
Use the the Fairwork Ombudsman website to check a list of reasons why a position could
be made redundant before you begin the process.

It may be necessary to provide proof, such as a new organisational chart or financial

records showing losses to prove genuine redundancy and avoid unfair dismissal claims.

Steps to take when considering redundancies and

retrenchment
Take a close look at other options and how the business operates. When considering
which positions to make redundant think about what skills are least needed now and what
you'll need when there is a recovery (if you are in a downturn). This means reducing or
eliminating positions that make the least contribution to safety, compliance or income.
Other options are reducing positions with skills easiest to replace or duties you can move
to other positions. Use our Workforce Action Plan (DOC 74 KB) HYPERLINK
"http://www.business.vic.gov.au/__data/assets/word_doc/0003/14475/workforce_action_
plan.doc" to help complete this step
check your employee's awards and agreements (and any workplace policies and
employment contracts) for notice periods, payments and the correct procedures. Errors
 here could mean claims for unlawful or unfair dismissal later
hold consultations with staff and unions (compulsory under some awards and
agreements and the Fair Work Act 2009 if there are more than 15 people who are made
redundant). If you have meetings (staff or individual) keep a written record of what was
discussed. Use our guide to dealing with staff in a downturn for help.
decide between voluntary or compulsory redundancies (i.e. the workers volunteer, or
the employer chooses who to retrench)
use fair selection criteria (e.g. performance) and transparent processes. Keep people up
to date to maintain trust and respect
prepare redundancy materials, payments and support, and farewell employees with
respect
notify Centrelink if there are to be more than 15 people being made redundant). Go to
the redundancy information for employers page of the Centrelink website
give the minimum notice period as a legal requirement or provide payment in lieu of
notice. If you do not advise the employee in writing or you give them a too short notice
period, this may be a breach of an award, a workplace agreement, the NES or the
employee's common law contract. Payment equal to the wages for the notice period is an
alternative to giving an employee notice, usually used if you decide to retrench them
immediately, or before the end of the notice period.
if individuals on long-term leave (such as parental or long service leave) are being
retrenched, ensure the process for selection is documented and transparent, and not based
on discriminatory grounds.
You can also use our comprehensive Checklist for Redundancy (PDF 64.97 KB)
HYPERLINK
"http://www.business.vic.gov.au/__data/assets/pdf_file/0014/14405/checklist_for_redund
ancy.pdf"

What makes up employees' termination payments?

Listed below are the two main elements that can make up the termination payment for an
employee who's position has been made redundant.

Redundancy pay
Businesses with less than 15 employees don't have to pay redundancy pay (unless they
are subject to an award, agreement or common law contract that states otherwise)
Businesses with 15 or more employees should check the Fairwork Ombudsmun website
to get details about what redundancy might be payable.
if you make a position redundant but give the worker an equivalent job you don't have to
pay redundancy pay
there are some very limited circumstances when an employer can apply to be exempted
from the requirement to pay redundancy pay to Fair Work Commission, or the amount to
pay can be reduced.
Final pay
 There is no one-size-fits-all solution to working out your employees final pay. It will be
made up of some, or all of these:

Outstanding wages, including penalty rates and allowances

accrued annual leave and annual leave loading entitlements
accrued or pro-rata long service leave (if applicable). Check to see if long service leave
payments are owing
'payment in lieu' if the employee is not going to work through the normal notice period to
their official last day (but remember to calculate and pay the employee's superannuation
to the end of the notice period)
other extra payments sometimes made to 'soften the blow' ('golden handshake'). If you
are opting to make extra payments, you should consider if you can protect your business
against future claims by former employees (for example, an unfair dismissal claim). A
professional adviser will be able to assist you with your options.
Special tax rules apply to some termination payments, e.g. unused annual leave, so check
with the Tax Office or your tax adviser about 'eligible termination payments'. Note that
unused sick leave is not paid out unless an agreement or award provides for cashing out
of unused leave (uncommon).

What to include in a redundancy package

written notice that end-of-employment is approaching (notice period)
redundancy kit with:
their entitlements calculated to the last day, clearly explained, listing which agreement or
award you based the calculations on, when and how you will make final payments
an Employment Separation Certificate stating that employment has ended and for what
reason (if needed for Centrelink)
a written, accurate, statement of service (if requested)
the offer of time off for counseling, training and job search services. Use the Business in
Transition Support program to provide resources to your employees
the offer to end their employment immediately by taking pay in lieu of notice (if mutually
convenient)
a farewell event.

Employee termination and unfair dismissal

There are many fair reasons to terminate an employee's contract. It may be poor
performance, misconduct, dangerous behaviour, refusing to follow instructions, or no
further need for the position (retrenchment or redundancy). By following proper process
and observing employer legal obligations around notice and reason should help minimise
claims of unfair dismissal.
VECCI highlights the process to be followed in situations where an employee has prior
warnings and trust breaks down between employee and employer. The editor, VECCI
Blog, 30 August 2012.

Read more about an employees dismissal for failing to follow work instruction.
Fair warning to terminate an employee explained
Every employee should be given the chance to reach the standards you set and be given a
fair hearing. Your HR policy should set fair and clear procedures for discipline and
dismissal. Use the sections in Useful Tools HR Manual template on discipline and
misconduct to guide you.

The often quoted 'three-strikes policy' is not a legal requirement, but employees
should be given fair warnings to improve their performance and some help if required,
e.g. extra training. You dont need to give warnings or notice if the employee has
committed gross or serious misconduct.

Termination and final payments for dismissed employees

Your employee is entitled to the termination payments under state and federal law, and
their award, agreement and/or contract, e.g. unused holiday pay, wages owing, and pro-
rata long service leave. Note that most businesses with less than 15 staff don't have to pay
severance or redundancy pay (except for some pre-March 2004 awards).

Required notice period

This varies depending on how long they have worked for the business. You may also
choose to pay 'payment in lieu of notice' (money equal to the wages for the notice period)
if you would like the employee to stop working immediately or before the end of the
notice period. Check the relevant award or workplace agreement on the Fair
Work Commission website or call 13 13 94 to check the notice period or what to pay in
lieu of notice, as these vary.

An employee can be instantly dismissed for gross or serious misconduct such as theft,
fraud, assault, being intoxicated, or refusing to carry out a lawful and reasonable
instruction, but first you should still give them a fair hearing about the circumstances
surrounding the incident. Under some awards or agreements instant dismissal can affect
their final payments, e.g. you may not have to pay their pro-rata long service leave, or
notice.

Unfair dismissal explained

Unfair dismissal occurs when there's no valid reason for the dismissal, or you have not
given the employee a warning or a fair chance to improve their performance. Another
form of unfair dismissal is if the employer makes a position redundant, retrenches the
employee and shortly after, hires a new employee to do the same duties.

The Small Business Fair Dismissal Code applies to businesses with fewer than 15
employees (excluding irregular casuals) from 1 July 2009 (under the Fair Work Act).
Although not legally required, use the Small Business Fair Dismissal Code Checklist fact
sheet at the Dept of Education, Employment and Workforce Relations as a guide to the
right procedure. Keep completed copies as a record youve done the right thing.

An employee can claim unfair dismissal if the business employs:

 less than 15 staff (excluding irregular casuals), and the employee has worked there for 12
months or more
15 or more staff (excluding irregular casuals), and the employee has worked there for six
months or more.
Note: Number of employees is based on a simple headcount (excluding irregular casuals),
not per full-time equivalent.

Unfair dismissal claims

From January 1, 2013, employees have a maximum of 21 days from the date of dismissal
to lodge an unfair dismissal claim.

Unlawful termination explained

Unlawful termination applies to all employers when an employee is dismissed or made
redundant for a prohibited reason which is usually discriminatory, when an employer fails
to give/pay proper notice, or when they dismiss 15 or more employees without first
notifying Centrelink.

For further information about unlawful termination, and what a prohibited reason is, use
the Fair Work facts sheets.

Breach of the National Employment Standards

You will be in breach of the NES if you fail to:

give the correct amount of notice to an employee

pay the correct final payments, e.g. severance pay.
An employee or the Fair Work Ombudsman can take you to Fair Work Australia to
recover money and possibly seek the imposition of monetary penalties on you or your
business.

Final payments
Calculations of typical final payments include:

unused annual leave

'payment in lieu' if the employee is not going to work through the normal notice period to
their official last day (but remember to calculate the employee's superannuation to the
end of the notice period)
pro-rata long service leave, usually only after seven years' service (10 years in some
awards containing their own long service leave provisions). The long service leave
calculator can help you calculate this.
Special tax rules apply to some termination payments e.g. unused annual leave. Check
with the Tax Office or your tax adviser for details.
 Wrongful Termination - Verify Your References

When wrongful termination is established, an employee then has the right to sue his/her former employer
for damages. This includes the loss of wage and "fringe" benefits, and, if against "public policy," additionally,
for punitive damages. To bring a wrongful termination suit the discharge of the employee must have been
without "good cause". The employee must have had an express contract of continued employment or there
must have been an "implied" contract based on the circumstances of his/her hiring or legitimate reasons to
believe the employment would be permanent. Also there may be a violation of statutory prohibitions against
discrimination due to race, gender, sexual preference or age, or the discharge was contrary to "public policy"
such as in retribution for exposing dishonest acts of the employer. An employee who believes he/she is the
victim of a wrongful termination may bring an action for damages, as well as for breach of contract.

Please research our areas of wrongful termination below:

Bad Boss

Discrimination

Sexual Harassment

If your client is the victim of a wrongful termination, our professional and discrete staff can contact your
former employer and inquire as to why an individual was terminated. The former employer will not be aware
that you are utilizing our service. Our highly trained staff will contact the employer just as any other
prospective employer would. We know the specific types of questions that can elicit the information necessary
to pursue a wrongful termination claim.

Wrongful Termination - Bad Boss

A bad boss can mean a bad reference. Will you trust your last boss to give you a good reference? Will this
"bad boss" be contacted by future employers when you applying for a new job? Knowing what your
former boss will say before a prospective employer contacts him may be the difference in
your receiving a new job offer. This is why our services are crucial to anyone who is applying for a
job. Don't let a bad boss or a bad reference ruin your chances of getting your dream job.

We will contact your former employer in a discrete and professional manner. Our professional staff will ask a
series of questions designed to elicit a response similar to that which will be given to a prospective
employer. Your boss will never know that you are utilizing our service. Our staff will provide a detailed report
of our conversation to you via your own private log in area of our website. The report will include the questions
and answers covered in the conversation, as well as tone of voice and attitude.

Armed with this information, you can go confidently into your next job interview knowing what a former boss
will say. Don't let a bad boss ruin your chances of getting a better job. Let us find out what they will say
before a prospective employer contacts them. Our clients are often shocked by what a former boss has to say
when our staff contacts them. If you think that your former or current boss is a bad boss then you owe it to
yourself to find out how they will respond to a prospective employer.

Remember, a prospective employer is under no obligation to inform you what they discovered while talking with
your former employer. Wouldn't you feel better knowing in advance what that person is going to say? Contact
our staff today and learn more about our services and reasonable pricing packages.

Wrongful Termination - Sexual Harassment

Sexual Harassment Definition - Gender Discrimination

Sexual harassment has several forms. One definition of sexual harassment in the workplace, known as quid
pro quo sexual harassment, occurs when sexual conduct is a condition of tangible employment benefits. This
includes salary, promotions, and even continued employment. Sexual harassment under this theory
constitutes the denial of an employment opportunity because of the individuals refusal to have sexual or social
relations with a supervisor.

Sexual harassment or gender discrimination can be demonstrated in two different circumstances. The
first is when a supervisor engages in gender discrimination in the workplace by imposing conditions on the
individual. The second is when a supervisor requests sexual favors in return for granting employment
opportunities. Both of these are forms of sexual harassment. In each of these situations gender does not
matter. Men and woman can both be the victims of sexual harassment in the workplace. Gender
discrimination in the workplace is more common than not. Call us today and we can conductbackground
HYPERLINK "http://www.allisontaylor.com/background-checks.asp" checks and employment checks on former
employers.

A sexual harassment complaint can only be actionable if it is sufficiently severe and pervasive to alter the
conditions of the victims employment and create an abusive working environment. The sexual harassment
must have the purpose or effect of unreasonably interfering with an individuals work performance or creating
an intimidating, hostile, or offensive working environment. If these elements are present there may be a claim
of sexual harassment available against the offending party and can lead to a sexual harassment complaint
investigation workplace.

Sexual Harassment in the Work Place Points:

Unlike other discriminatory behavior, it often may be nearly indistinguishable from normal social
relations between men and women.

Sexual harassment and other gender discrimination can violate individual's rights even if the
victim suffers no adverse employment decision or economic impact as a result.

Sexual harassment and other gender discrimination frequently are practiced in violation of, rather
than in compliance with, company policy.

Sexual Harassment Laws

Sexual harassment is unlawful under both state and federal laws. Simply stated, sexual harassment is an
abuse of the employer's power. There are two types of sexual harassment:

Quid pro quo harassment occurs when an employer conditions any term of employment on the performance
of sexual favors. For example, an employer cannot require an employee to engage in sexual conduct to keep
from getting fired.

Hostile work environment sexual harassment occurs when an employer maintains an environment where
a) offensive conduct of a sexual nature is either tolerated or encouraged, and b) that conduct makes others
feel uncomfortable or conditions unreasonably interfere with an employee's performance in the workplace on
account of his or her sex. A hostile work environment can also exist on the basis racial discrimination, sexual
orientation discrimination, religious discrimination, disability discrimination, or age discrimination. This illegal
conduct can include uninvited touching or groping, lewd comments, dirty jokes and even physical assault.
 Wrongful Termination - Discrimination
Discrimination

Unfortunately, discrimination affects many in todays work force. Discrimination comes in many forms from
age, disability, racial, sexual orientation, pregnancy, reverse, gender, or national origin discrimination. With 20
years of experience in verifying job, references Allison & Taylor can help solve your job discriminationcase by
checking what your former boss/employer has to say about you.

Age Discrimination
Gender Discrimination
Reverse Discrimination
Native American Discrimination / Race Discrimination
Performance Evaluation Subjective Discrimination

Business in Transition Support

Business in Transition Support (BiTS) provides
information for both employers and employees facing redundancy and
retrenchments.

It brings together information, tools and resources in one place so you get the support you
need through the change.

Employing and managing people

Knowing the correct wages and conditions for your employees, following all workplace safety laws and
keeping staff motivated are good ways to retain staff. Use the sample documents, HR templates and
calculators when managing your staff.

TYPES OF WORK SEPARATIONS

Key to predicting how an unemployment claim or other type of employment
action might turn out is the ability to understand the circumstances under
which an employee leaves the company. The nature of the work separation
determines to a large extent how a claim or lawsuit will be handled. The
purpose of this brief article is to summarize the most important ways in which
TWC analyzes work separations, but other laws will be mentioned where
appropriate. Additional information on this topic can be found in the next
section of this book, "Post-Employment Problems", in the articles dealing
specifically with unemployment claims.

Voluntary Work Separations

Involuntary Work Separations

Effect of Voluntary or Involuntary Work Separations

Quit or Discharge - Close Cases

Two-Week Notice Rule

Ambiguous Notice

Resignation Without Notice

Voluntary or Involuntary?

The first thing to do is determine whether a work separation is voluntary or

involuntary. This is important not only because TWC applies different
standards to voluntary and involuntary work separations, but because many
companies' benefit plans provide different outcomes depending upon the
circumstances in which an employee leaves employment.

Voluntary Work Separations Top of Page

A work separation is voluntary if initiated by the employee. An employee

initiates the work separation if he or she basically sets the ball rolling toward
a work separation. In a true voluntary work separation, the employee has
more control than the employer over the fact and the timing of leaving the
work. That can happen several different ways:
Resignation with advance notice - the employee gives the employer oral or
written notice of leaving in advance.

Retirement - a special form of resignation with advance notice that involves

satisfying some kind of condition for leaving the company with one form or
another of continued benefits.

Resignation without advance notice, but with notice given at the time of the
work separation - the employee does let the employer know somehow that he
or she will not be returning to work.

Resignation without notice at all - this can include walking off the job, job
abandonment, and failure to return to work after a period of leave.

"Constructive discharge" for purposes of discrimination, wrongful discharge,

anti-retaliation, and other laws, an employee may be considered to have
been constructively discharged if working conditions were so intolerable that
a reasonable employee would feel forced to resign. However, under the law of
unemployment compensation, such a work separation is generally considered
to be voluntary.

Failing to return following an unpaid suspension of three days or less - see

"Unpaid Suspensions" in the article "Unemployment Insurance Law -
Qualification Issues" for details.

As long as the employer did not pressure the employee into resigning, work
separations that occur under those circumstances may be considered
voluntary.

Focus: Job Abandonment

There is no official definition of job abandonment in the statute or the TWC

regulations. It is mentioned in the following TWC precedent cases: Appeal No.
97-004610-10-042497, VL 135.05(6); Appeal No. 1197-CA-71, VL 450.02(2);
Appeal No. MR 86-2479-10-020687, MC 90.00; and Appeal No. 764254-2, MC
135.05 (cross-listed at VL 135.05). The concept of job abandonment is
generally defined by each company in its employee handbook. The basic idea
is to set a limit for the number of days an employee can be completely out of
contact with the company, beyond which the company will presume that the
employee has decided not to return to work at all. Most companies define job
abandonment as absence without notice for three or more days in a row.
Such work separations are generally considered voluntary, although TWC
may view certain job abandonment-caused work separations as involuntary,
depending upon how the claimant and employer explain their respective
positions and on what the facts show.

Involuntary Work Separations Top of Page

A work separation is involuntary if initiated by the employer. An employer

initiates a work separation by taking some kind of action that makes it clear
to the employee that continued employment will not be an option past a
certain date. In such a situation, the employer has more control than the
employee over the fact and the timing of leaving the work. There are many
ways in which a work separation can be involuntary:

Layoff, reduction in force, or downsizing - work separation due to economic

inability to keep the employee on the payroll.

Temporary job comes to an end - work separation due to work no longer

being available because the job is simply finished. This includes successful
completion of PRN or on-call, as-needed assignments, if no further work is
available the next workday.

Discharge or termination for misconduct or "cause" - work separation that the

employer views as somehow being the claimant's fault.

Resignation in lieu of discharge - same as discharge, but the employer gives

the employee the option of resigning as a face-saving option.

Forced retirement - may be akin to an economic layoff or a discharge for

cause, but in this situation, the employee is allowed to qualify under a
retirement plan.

"Mutual agreement" - in most cases, this form of work separation is viewed as

involuntary, since it is usually initiated or encouraged by the employer.

Unpaid suspension of four days or longer - see "Unpaid Suspensions" in the

article "Unemployment Insurance Law - Qualification Issues" for details.

Focus: PRN Status / On-Call, As-Needed Employees Top of Page

Status as a PRN or on-call, as-needed employee would not have anything to

do with unemployment claim eligibility, since on-call, as-needed employees
are regarded as having been laid off, i.e., involuntarily separated from
employment, upon the completion of each assignment if no further work is
available the next workday. For unemployment claim purposes, a PRN
employee's work separation date would be the last day of an assignment, if
no further work was available on the next workday immediately following that
day. Such a work separation could lead to a chargeback if the claimant draws
unemployment benefits, and the company paid wages to the claimant during
the base period of the unemployment claim (the chargeback decision
depends upon the reason why the last period of work during the base period
came to an end). It does not matter if a company leaves a PRN employee on
the active payroll system for a particular length of time. What matters is that
the employee stopped working for pay at some point. Under the law of
unemployment compensation, that is the relevant work separation that the
agency takes into account.

Effect of Voluntary or Involuntary Work Separations Top of Page

The nature of a work separation may determine several important things

following the decision to sever the employment relationship:

Voluntary work separation:

Under the Texas Payday Law, an employee who leaves voluntarily must
receive the final pay no later than the next regularly scheduled payday
following the work separation.

In an unemployment claim, the claimant who voluntarily left employment

faces the burden of proving good cause connected with the work for leaving
the job.

In many companies, employees who leave voluntarily receive different

benefits than those who are involuntarily separated, depending upon the
terms of the company's benefit plan.

Involuntary work separation:

Under the Texas Payday Law, an employee who leaves involuntarily must be
given the final pay no later than six calendar days following the last day of
work.

In an unemployment claim, the employer that initiated the work separation

has the burden of proving misconduct connected with the work as the reason
for discharge.

Post-termination benefits eligibility under company benefit plans is often

affected by involuntary work separations. If the discharge was for "cause" or
misconduct, such benefits are often reduced or denied. Under COBRA, an
employee who was terminated for "gross misconduct" is ineligible for
continuation coverage under the company's health plan.
Quit or Discharge - Close Cases Top of Page

The question of whether a claimant quit or was fired is very important. It

determines who has the burden of proof in the case. The burden of proof in
an unemployment claim falls on the party that initiated the work separation.
If a claimant quit, he has the burden of proving that he had good cause
connected with the work to resign when he did. If the claimant was fired, the
employer has the burden of proving 1) that the discharge resulted from a
specific act of misconduct connected with the work that happened close in
time to the discharge and 2) that the claimant either knew or should have
known she could be fired for such a reason.

Sometimes the circumstances are murky, and it is unclear exactly what

happened. Here are some hints as to how TWC will rule:

Whoever first brought up the subject of a work separation might be held to be

the one who initiated the separation.

"Mutual agreement" work separations are usually held to be discharges. See

# 1.

A resignation under pressure is a form of discharge. If the employee had no

effective choice but to leave when they did, it was an involuntary work
separation, and the employer's chances in the case will depend upon its
ability to prove misconduct.

If an employee expresses a vague desire to look for other work, and the
employer tells the employee to go ahead and consider that day to be his final
workday, that will usually not be considered a resignation, since no definite
date has been given for the final day of work.

If the encounter starts out as a counseling session or a reprimand, and the

employee gets discouraged and offers to quit, watch out. If you immediately
"accept the resignation", it might be considered a discharge. It would be
better to remind the employee that all you wanted to do was talk about a
problem, not let him go, and ask the employee whether resignation is really
what he wants. If he then confirms that he wants to resign, ask him how
much notice he is giving. If he gives two weeks' notice or less, and you
accept the notice early within the two weeks, it will still be a quit, not a
discharge. (An employer does not have to pay an employee for the portion of
a notice period that is not worked, unless company policy promises such a
payment.)
If you have an employee sign a prepared, fill-in-the-blank resignation form,
that will look suspicious. The employee might claim that he was forced to sign
it or else was tricked into signing it, which will only hurt your case. Have the
employee fill out a resignation letter in his own words, preferably in his own
handwriting, if you can persuade the employee to cooperate to that extent.

If an employee offers to resign, but you instead convince the employee to

stay, and later change your mind and "accept the resignation", you have just
discharged the employee! Persuading an employee to stay after they have
tendered their resignation amounts to a rejection of the resignation, which
means that the offer to resign expires, and the employee's acceptance of
your pleas to stay amounts to a rescission of the resignation.

If an employee asks to be laid off, be careful - that can be a trap. Do not react
like some employers have and fire the employee. Remember, if the employee
resigns, they have the burden of proving good work-related cause to quit. It
would probably be best to answer any layoff requests with a response to the
effect that the request is denied and a reminder that the employee is still
needed, thus placing the ball back in the employee's court. If the employee
persists, follow that up with a statement to the effect that if the employee no
longer wishes to work there, they need to submit a resignation request in
writing, and remind them that in the meantime, they still have a job to do. Do
not prepare a resignation letter for the employee to sign -- have the
employee prepare their own statement of resignation, and then respond to
that statement in writing, attaching a copy of the employee's resignation
notice to the response. Be sure that any exit paperwork reflects that the
employee resigned.

If you are merely counseling an employee about a matter of concern, and the
employee starts badgering you with questions and comments like "Are you
telling me I'm fired?", "So you're firing me for this?", or "I can't believe you're
firing me for this!", watch out. Things like that are often seen in situations
where the employee is trying to maneuver the employer into a premature
discharge in the hopes that an unemployment claim might turn out favorably
for the claimant. The best response is something like this: "No, I am telling
you that you need to start paying attention to instructions and following the
rules." Make it clear to the employee that you are focused on improving their
performance or on getting them to comply with policies. Once again, place
the ball back in their court, effectively letting them know, without saying it
out loud, that if they want out of the company, they will have to take the
initiative themselves.

Two-Week Notice Rule Top of Page

The amount of notice can be important in a TWC case. The rule followed by
the Commission recognizes that two weeks' notice is standard in most
industries. If the employee gives notice of intent to resign by a definite date
two weeks or less in the future and you accept the notice early at your
convenience, it will be regarded as a resignation, not a discharge. If more
than two weeks' notice is given, but you wait until two weeks or less before
the effective date of resignation to accept the notice early, then you would
have a good chance of having TWC regard the work separation as a
resignation, although not all claim examiners and hearing officers agree. Also,
if the employee gives more than two weeks' notice, and you accept it more
than two weeks in advance, but you pay wages in lieu of notice for the rest of
the notice period, then the situation will still be judged a quit, not a
discharge. However, if more than two weeks' notice is given, and you accept
the notice more than two weeks in advance without paying wages in lieu of
notice (payment for a notice period not worked is not required unless such a
payment is promised in writing), the situation is likely to be considered a
discharge, with the burden of proof falling squarely on you to prove
misconduct connected with the work if you feel that the claimant should be
disqualified from UI benefits. Much would depend upon the individual facts in
the case.

The same rule works in reverse when an employer gives advance notice of a
layoff or termination. If the notice is two weeks or less, and the employee
accepts the notice by leaving within the two-week period, the work
separation will still be considered involuntary, and the employer will have to
prove misconduct if the claimant is to be disqualified from unemployment
benefits. However, if the notice is longer than two weeks, and the employee
leaves ahead of the final two-week period, the work separation would
presumably be voluntary in nature, and the employee would have the burden
of proving good cause connected with the work for resigning. For more details
on how TWC applies the two-week notice rule, see section 125.25 in both the
Misconduct and the Voluntary Leaving chapters of the agency's Appeals
Policy and Precedent Manual.

Ambiguous Notice Top of Page

Sometimes employees give murky resignation notices (open-ended, or giving

employers multiple options). If the company has the luxury of needing the
employee to actually stay, it can try the following to minimize the risk of a
"layoff at the employer's convenience" ruling:

respond with a memo rejecting the resignation notice - let the employee
know it is not convenient for the company that the employee resign at that
time, so the employer really needs for the employee to stay, with no change
in the employment agreement.

completely ignore it - if they resubmit the same letter, admonish them that it
does not look like a resignation letter, since there is no definite date given for
the last day of work, and ask the employee to take it back and not submit it
again until they actually want to stop working.

All of this would be aimed at getting a real resignation letter with a definite
date of resignation two weeks or less in the future. Adopt a policy informing
employees that no open-ended notices of resignation will be accepted - any
notice of resignation must contain a definite date of last work. The policy
should remind employees to use caution in submitting a letter of resignation,
because once the employer takes action on it, it may be too late to rescind
the notice.

Resignation Without Notice Top of Page

It can be difficult for a company to protect itself in a resignation case and

"prove" that an employee quit, if the employee refuses to give a written
notice of resignation, or else leaves under circumstances that make it unlikely
that the employee will cooperate and give the company a letter of
resignation after the fact. In many such cases, the ex-employee later alleges
the company fired them. The most common situation involves a resigning
employee quitting without notice, informing only a coworker of that fact, and
leaving the employer with no resignation letter to prove it was a resignation.
Invariably, the sudden resignation causes one or more coworkers to have to
work extra hours. To document that the employee resigned, have the
coworker write a memo to the employer explaining the call or contact with
the ex-employee and why the coworker worked the extra time: "Dear [Boss],
This is just to let you know that the reason I [came into work] [came to work
earlier than usual] [worked past my usual end time] today was because
________ called me and said she was quitting and that I needed to cover for
her. I worked from ____ to ____, a total of __ hours. I didn't want you to think
that I was trying to work outside my schedule. Just let me know if you need
me to continue covering for ______." Such a memo serves two purposes: 1) it
explains why the coworker worked outside the schedule; and 2) more
importantly, it increases the credibility of the assertion that the employee
quit, in case the employee disputes that fact in an unemployment claim.
Ideally, the coworker would be available later to give firsthand testimony
confirming what he or she wrote in the memo. Of course, such a memo will
not cover every possible resignation-without-notice situation, but it is an
example of how an employer can think outside the box to give itself a little
more protection in resignation cases.

In close cases, most administrative agencies such as TWC decide that the
work separation was involuntary. Employers should be prepared with both
documentation and witnesses to prove their cases either way in the event of
a dispute over the nature of the work separation.

Employee Separation Resignation, Termination and Absconding

Employee Separation Resignation, Termination and Absconding

Introduction

Employee Separation is one of the very important and crucial function /

process of HR Department. This process, if not handled in an efficient
manner, can lead to various legal complications.

Lets understand the term employee. According to various definitions an

employee can be defined as:

1. a worker who is hired to perform a job (wordnet.princeton.edu/Perl/webwn)

2. An individual who provides labor to a company or another person

(en.wiktionary.org/wiki/Employees)

3. An individual who provides services for compensation to an employer and

whose duties are under the control of the employer.
(www.aspa.org/resources/res_news_glossary.htm)

An employee works for an employer and gets paid for his work and nothing
else. The relation of an employer and employee has a beginning; they stay
together for a while and then they separate. Beginning of the relation is
called as recruitment process or talent acquisition that passes through
selection phase and followed by induction. Staying together in the relation
comprises the various phases such has performance management; career
management; professional growth; development and etc. And the final stage
of the relation is the separation.

Broadly speaking, in normal scenarios the separation between employer and

employee can be due to any of the following three (this will be discussed in
detail in subsequent paragraphs):

1) Resignation Employee decides to leave the organization.

2) Termination Employer decides to break the contract of employment.

3) Absconding When the employee decides to leave the organization

without tendering his resignation or following the proper process of
separation.

Apart from the above mentioned, the relation between employer and
employee can also be terminated during the lay-offs (Financial or economic
crisis); during the process of mergers, acquisitions and take-over; or any
other legal intervention by the state or central government.

Based on the type of employee that has been hired by the company, if local
or an expatriate or a national of other country or if an employee is hired
through outsourcing agencies, the process of separation and the documents
involved in it also differs.

Later in this article we will discuss these issues in more detail.

Types of Separation

Resignation This is the most common way of separation. Employee leaves

his job and employment with his employer to pursue better opportunities; a
better position at a better compensation package in a branded company (or
better known company) in a same city and country or in a different city or
different country. So, an employee resigns for:

1) Better compensation and benefits

2) Higher position / level

3) Challenging role

4) To move from an unknown or lowly branded company to a highly

branded and reputed company (Top 10 or 25 companies in the world etc.)

5) For foreign or international assignments

Termination Usually, this process is perceived negatively by employees. In

termination, an employer uses his right to terminate the contract of an
employment. There can be many reasons for an employer to terminate the
contract of employment but some of the common reasons are:

1) Non-Performance

2) Indiscipline

3) Misconduct

4) Insubordination

5) Theft and etc.

Absconding - This is one of the most unethical, unexpected and

unprofessional way to terminate the contract of an employment. In this, on
one fine day an employee decides not to go to work. He does not care to
hand-over his stuff. In case an employee decides to abscond (or run-away), it
becomes very important to understand his motives and intentions.
Employees can abscond in either or all of the below mentioned circumstances
/ situations:

1) After stealing the confidential information or documents or database

from the company.

2) If the intentions of an individual is to commit a crime.

3) If there is a work-pressure and stress and the individual is not able to

cope-up with it (as it happens in call-centers, BPO and other high-stress
industries).

4) If the employee has committed any crime outside the office and after
working hours (such as murder or getting involved in terrorist activities or
theft or any other civil crime).
5) Then, when priorities are different. Employee has asked for leave due to
some urgency at his home (or might be he is trying to escape from his work
responsibilities) and at the same time his team also needs him in the office
and his leaves are not approved.

6) If he has got some exceptionally good opportunity that requires him to

join immediately and he feels that the process of separation in his company is
a bit too complicated. He assumes few things and do not really try to face the
challenge.

7) Lastly, it is a personality issue. Employees that abscond have different

personalities. They are low in confidence. They are too weak to face the
reality and challenges of life. They feel that running away from the problem is
as good as solving the problem. They are cowards to take the problems head-
on.

The Process of Separation

Resignation

Once an employee gives his resignation to the department head or the

management, it is important for HR to schedule the first meeting with him.
Preferably the meeting should be scheduled within 24 hours or else it will
give an impression that no one really cares. Being a neutral department,
the meeting should be administrated by HR Manager (Employee Relations
Manager) or anyone senior to him to understand the root cause of separation.

1. If the root cause is an issue with the reporting manager of an

individual; or some conflict with a team-member or some other human issue,
try to address the same with the concerned person.

2. If the reason for resignation is better opportunity or a higher position,

explain to him the Performance Management System and Career
Management System of the company. If possible, show him his performance
records. Do not make any commitment that you might not be able to fulfill,
such as, we will give you a promotion in this appraisal or will send you
overseas for an assignment and etc and etc.

3. If an employee has given his resignation because he is getting a better

compensation package, explain to him the grading system and compensation
package of your company and also share with him the minimum possible
increase that he might get in his next appraisal but do not give any hike
immediately. You might be required to repeat this exercise after another
couple of months. So, dont show any blood to the lion.

Any other reason of resignation, such as policies of the company, benefits,

branding and positioning of the company, working hours and etc. are beyond
the preview and scope of this discussion with HR. Such issues cannot be
changed to suit the needs, demands and requirements of one individual.
However, if more employees are leaving the organization for one specific
reason then the management should address the matter but this should not
be done for one specific employee.

After the meeting give your feedback to the department head and advise him
on whether to accept the resignation or not.

Once the resignation is accepted, issue the letter of acceptance of

resignation to the concerned employee and inform the IT, Payroll and
Finance Department.

Responsibility of the Department Head: Now, the department head needs to

plan the process of handover of duties, projects and assignments to other
member(s) in the team.

1. Let the departing employee complete all the tasks and assignments he
has in hand.

2. Do not assign any new project or assignment to this employee.

3. If there is nothing to complete and proper hand-over is done, then

relieve the employee as soon as possible.

It is a proven fact that once an employee decides to leave the organization

and gives his resignation, they show less commitment, sincerity and
dedication in their work. Hence, it is important to relieve them as soon as
possible rather than them coming to the office and wasting the time of
people who are dedicated to their work and resources of the company.

Responsibility of the HR Department:

HR, on the date of acceptance of resignation letter, should instruct the IT

department to keep track on all the outgoing emails from the system of
separating employee. All IT permissions and rights should be withdrawn from
that employee and he should not be allowed to send any email to any other
email ID except the office email IDs. He should not be allowed to copy or edit
or delete any file from his system.

HR should ask the concerned employee to obtain no-due letter from all the
concerned departments.

HR should calculate all the amount payable to that employee and the
payment should be made on the last working day of the employee. On his
last day, the company should also give him the relieving letter.

In case of expatriate employees

Even in the case of expatriate employees, the process will be the same
except that the involved stake-holders will be more. An expatriate employee
is a responsibility of employer and hence care should be taken to ensure that
everything runs as smooth as possible, till the very last day of the employee
in the organization. Therefore, in addition to various departments within the
company, the HR should also inform:

1. the immigration office of the concerned country about the companys

disassociation with the employee;

2. the banker, healthcare insurance provider, landlord and other service

providers;

1) (This is to ensure that these stakeholders shall not disturb the company
to recover any cost or loss due to its ex-expatriate employee.)

Termination

Termination can be challenged in the court of law. Hence, care must be taken
to document all the incidents that have led to the termination of an
employee.

In case of disciplinary action, the company should take care that the proper
procedure is followed. Warnings (oral and written) were issued to the
employee and the whole incident is properly documented.
In case of non-performance, the required documents must include:

a. Tasks given

b. Expected performance level

c. Evaluation criteria

d. Actual performance

e. Shortfall

f. Action required

Parties involved in the termination process include:

1) The Reporting Manager

2) The Department Head

3) The HR and / or

4) Any other senior member of the department

Once the decision is taken to terminate the contract of employment, the

company should seize all the belongings of that employee such as
computer, drawer, access cards, laptop, ID Cards, files and etc.

Employee should be given the letter of termination clearly specifying the

reasons of termination.

Based on the severity of the case, the company might decide to pay the
employee for the notice period. For example, in case of non-performance he
must be paid for the notice period but in case of any disciplinary action, theft
or misconduct, he should not be. The entire amount due to him must be
recovered.

In case of expatriate employees

1. Company should recover all the required documents.

2. Inform the immigration office of the concerned country about the

companys disassociation with the employee. Company should also inform
the banker, healthcare insurance provider, landlord and other service
providers.

3. If possible, arrangements should be made to ensure that the

terminated employee take the flight to his home country. This is to ensure
that the concerned employee doesnt stay illegally in the country or commit
any crime before leaving the country.

Absconding Employee

This is one of the most complicated ways of separation.

In case of local employee:

If the employee did not come to the office and nor did he informed about his
whereabouts, try to contact him on his mobile phone.

If he is not answering his calls or his mobile phone is not working then try to
call him on his residence number. Even if that is not working then speak to his
friends in the office to assess the situation.

In case you are not able to get any information about the employee then
assume that he has absconded. As per the employment laws in various
countries, send him three official notices starting from the second day of his
disappearance and send every subsequent notice after every three days. If
there is no response from his side then strike-off his name from your payroll.

On the first day of his disappearance, confiscate his workplace, his computer,
drawer etc. Take the help of Systems and Networking department to analyze
all the emails that has been sent from his computer and to whom. Stop his
salary immediately.

Seek legal help to recover your costs and /or any other items or products that
has been issued to him, such as access cards, ID Cards, Laptop, Corporate
Credit-card, House, Car etc, as applicable.
In case of Expatriate Employee

If the employee did not come to the office and nor did he informed about his
whereabouts, try to contact him on his mobile phone or any other phone
number as available in company records. If he is not answering his calls or his
mobile phone is not working and also there is no response from his house,
then speak to his friends in the office to assess the situation. Check, if the
person is still in the country or he has already left. Stop his salary.

Report the matter to the police within 24 hours. Sudden disappearance can
be interpreted in many ways, such as any accident; he might have run-
away from the country for any of the reason listed above; he might have
stolen the confidential information from the company; or he might have got
himself involved in any civil crime or criminal activity. For all reasons and for
the safety of the company, it is important to report the matter to the police.
Submit the copy of the police report to the Passport and Immigration Office of
your country and also send the copy of the report to the Consulate or high-
commission of the respective country. Also inform the banker, healthcare
insurance provider, landlord and any other service providers of the concerned
employee.

Seek legal help to recover your costs and /or any other items or products that
has been issued to him, such as access cards, ID Cards, Laptop, Corporate
Credit-card and etc, as may be applicable.

Conclusion

The processes described in this article are just the general outline that must
be followed in case of any separation and not any industry or company
specific processes. Based on the employment laws applicable in the countries
that they are operating in, companies can choose to be more stringent or
lenient in their approach. The process described here is more amicable and
ethically correct.

Once an employee decides to resign and leave the organization, whatever

you may do but he will leave; if not today then tomorrow. On the other hand,
if the employer decides to terminate the contract, he might change his mind,
provided the case against the employee is not very severe.
Absconding, as mentioned above is in itself is a crime; something that only
coward people do; such people just give-up without even making an attempt.
These people run away from the reality of life and from the challenges that
life offers to get best out of you and to make you master.

As an employee whenever you decide to leave the company, do it in a more

professional and acceptable manner.

As an employer, whenever you decide to terminate the contract of

employment of any employee, make sure that you document all the incidents
in a chronological manner and have in your possession, all the required
evidences. Unfortunately, decision of resignation cannot be challenged in any
court and it is considered as a right of an employee but decision of
termination can be challenged.

Employee separation is a big process and does not involve unilateral

decisions. Be accurate. Be professional.