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An Employee Failing to Provide Notice of Resignation - Leiminer's Case

Aug 31, 2008
Griffith University v Leiminer [2008]FMCA 1045 (28 July 2008)

In Late July 2008 the Federal Magistrate's Court for the first time ever fined an employee for failing to provide notice of resignation, although the magistrate questioned the employer's actions in bringing the matter to Court.

Griffith University had sued lecturer Michelle Leiminer for breaching Section 719(1) of the Workplace Relations Act by her having given seven weeks and one day's notice- less than the six months required under the collective agreement with the university. In addition to financial loss the university argued it had suffered non-pecuniary loss including damage to reputation, disruption of other staff, disadvantage to students, and loss of profile from contributions which Leiminer was expected to have made to journals.

While finding Leiminer had deliberately breached the collective agreement the Court found that her conduct was based on erroneous advice from the union, was not malicious and was mitigated by her efforts in making transitional arrangements. She had also attempted a compromise with the university and offered a $500 settlement.

The Federal Magistrate rejected the submissions of the university that it was necessary to enforce the minimum standards of the Act (particularly under Section 3(f) on the basis that the breach must be viewed in context and was one more appropriately dealt with under a claim for damages stating "...the employee breached the bargain but beyond that it can't be said that the breach has had broader ramifications."

The Court added: "The concept of penalties applying to breaches of industrial instruments is more appropriately directed to those breaches that have a broader economic impact. "

The magistrate also rejected the university's submissions on the need for deterrence, saying that the case did not involve an element of morality extending beyond the two parties in the case.

The university had argued that it had lost $22,700.00 in extra teaching costs but the Court found that was offset by the $38,000 including superannuation and $1,800 in incurred entitlements it would have had to pay to Leiminer had she worked out the full notice period. So far from incurring financial loss the university had actually saved money.

The case although not earth shattering in terms of its actual result, through of penalty and legal costs adds a potential argument to dissuade employees from terminating their employment contracts short of the requisite notice period.

- Employment Law & Unfair Dismissal-

Employment Law and Unfair Dismissal needs to be looked at from two points of view. The first - employers and the second - employees. Issues such as remuneration, termination payment, employment policies and human resources management impact everybody in the employment sphere. It is important, whether you are employer or employee, that you make the right decisions throughout your employment whether it be at interview, in contract negotiations to managing performance or termination. In order to achieve the right balance in an employment context it is important that your adviser not only understands employment law but has the necessary skills to cover these issues which are important to you whether they be commercial, industrial or individual.
About the Author
Robert is a legal practitioner of many years experience. He was formerly a barrister. He has practiced in many areas of the law including employment law & unfair dismissal & appeared as an advocate in most jurisdictions in NSW as well as the Federal and High Courts.
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