Ceasing Employment and Automatic Termination
Employment can cease in several ways, including resignations, terminations and automatic terminations.
Ceasing employment under the Members of Parliament (Staff) Act 1984 (MOP(S) Act) can occur in the following ways:
- employee resignation
- termination by the employing parliamentarian
- termination by operation of the MOP(S) Act (also known as ‘automatic’ termination).
For any queries relating to ceasing employment, please contact the HR Advice team.
Resignation
A MOP(S) Act employee may resign from their employment at any time by giving notice in writing to their employing parliamentarian.
A ceasing employment form must be completed as soon as possible, with a copy of the written resignation attached. This notifies MaPS to finalise employment matters, such as the payment of any accrued leave entitlements.
Termination by the employing parliamentarian
A parliamentarian (or authorised person) may terminate an employee’s employment in accordance with the MOP(S) Act and other legislative obligations by giving notice in writing.
Parliamentarians must consult with the PWSS before making a decision to terminate the employment of a MO(P)S Act employee.
The decision to terminate the employment of an employee can be made for a range of reasons, including (but not limited to):
- parliamentarian has lost trust or confidence in the employee
- misconduct
- non-performance or unsatisfactory performance of duties
- failure to meet a condition of engagement, including probation
- an employee is excess to requirements of the office due to an office restructure
- significant conflict of interest that is unable to be mitigated
- failure to adhere to the Behaviour Codes and Standards, and/or Ministerial Staff Code of Conduct (where applicable)
Where an employer is considering terminating an employee for unsatisfactory performance, the following process is to be undertaken:
- make the employee aware of any performance issues and then provide a reasonable opportunity for the employee to improve.
- if performance does not improve, issue a notice of intention to the employee setting out the proposed reasons for termination and provide an opportunity for the employee to outline reasons why they should not be terminated.
- consider the submissions before making a final decision regarding termination.
Any termination of employment must meet the requirements of the Fair Work Act 2009, including ensuring the termination is not unfair or unlawful. Where an employer proposes to terminate an employee who is on probation, the parliamentarian must still follow a reasonable and fair process.
Terminated employees must be provided with detailed written reasons for their dismissal and the applicable notice period. A copy of the written termination notice must be attached to the completed ceasing employment form as soon as possible. This notifies MaPS to finalise employment matters, such as the payment of accrued leave entitlements and severance benefits.
MOP(S) Act employees may seek advice from the Fair Work Commission regarding any possible remedy with respect of termination to their employment.
Further information, including the required notice period can be found in the Termination Policy. Notice requirements are also detailed at clause 72 of the Enterprise Agreement.
Termination by operation of the MOP(S) Act
An employee’s employment can be automatically terminated by operation of the MOP(S) Act, where a trigger event specified in section 14 of the MOP(S) Act occurs. This may include where an employing parliamentarian ceases to be a parliamentarian, ceases to hold a relevant office or ceases to be covered by a determination made under section 4 of the MOP(S) Act.
In the event that an employing individual ceases to be a parliamentarian, the PWSS assumes the role of employer for employees within the office.
Where an automatic termination of employment occurs, impacted employees will be contacted by the PWSS and will be provided with individual tailored advice. Impacted employees would be required to complete and submit a notification of employment status form following an automatic termination, to inform both the PWSS and MaPS of their employment intentions.
Further information can be found within the Automatic Termination of Employment factsheet.
Deferral of termination of employment
For ongoing and non-ongoing employees, automatic termination does not take effect immediately. Instead, termination can be deferred by a period of time, from the date that the trigger event occurred, as prescribed in the MOP(S) Act direction to defer the termination of employment.
Employees in a deferral period continue to be an employee and are expected to continue to undertake the duties of their role. Employees may also use this time to seek alternative employment or apply to take leave. During deferral an employee may only travel for official purposes between the electorate office or another office provided at Commonwealth expense, and Canberra (unless otherwise approved by the PWSS delegate).
In circumstances, where the PWSS assumes the role of employer, requests for leave, travel and alternate work bases must be provided to the PWSS delegate for consideration in advance by completing the relevant form and emailing to the HR Advice team.
Termination entitlements
MOP(S) Act employees can use the final entitlements estimator to estimate any eligible final entitlements.
Severance benefits
Ongoing employees receive severance benefits under clause 73 of the Enterprise Agreement. A severance benefit is paid if an employee’s employment is terminated under the MOP(S) Act and is not a genuine redundancy payment.
- Employees receive additional severance benefits of 30 per cent, in line with clause 74 of the Enterprise Agreement, if their employment is automatically terminated by operation of the MOP(S) Act and if severance benefits are not treated as a genuine redundancy payment’ (subdivision 83-C of the Income Tax Assessment Act (Cth) 1997).
- Under clause 73.6 of the Enterprise Agreement, employees may retain their severance benefit should they be re-employed as a MOP(S) Act employee during their severance period, where they: have a break in their employment of at least one business day. It’s important that employees understand the impact of this decision on other employment entitlements as per the table below. notify MaPS payroll of their decision to keep their severance by making a written election that they will not have their prior service recognised for the purposes of future severance and annual leave when completing and submitting a notification of employment status form.
| Entitlement | Impact of enacting Clause 73.6 |
|---|---|
| Annual Leave | Prior balance is not re-credited as it has been paid out. Credits are reset and accrual starts from re-commencement of MOP(S) employment. The anniversary date for additional crediting becomes date of re-commencement of employment. |
| Personal Leave | Prior balance will be re-credited if the break in service is not more than a period of two months. The period of the break in service does not count as service. |
| Long Service Leave | Prior balance is not re-credited or recognised as it has been paid out as severance and under the Long Service Leave (Commonwealth Employees) Act 1976 cannot be paid back. Prior service will be recognised in calculating total service. For example, if an employee were to be paid out 8 years of Long Service Leave pro rata and is then re-employed for another 2 years, they will have 10 years total service. They will be entitled to 2 years pro rata Long Service Leave, i.e 18 days. |
| Maternity Leave |
On re-commencement, service for the purposes of paid maternity leave resets. Prior service is not recognised. Staff on paid maternity leave when they are automatically terminated will have their remaining maternity leave paid out. |
| Future severance benefits | Prior service is not recognised. The service period for purposes of a future severance benefit begins on re-commencement of employment. |
| Retention Payment | Employees will not be eligible for retention payment where they have a break of at least one business day in the preceding 12 months, including in order to retain a prior severance benefit. |
| Salary advancement | Not impacted by retaining a prior severance benefit if the conditions of clause 23.8 of the Enterprise Agreement are met. |
| Competency assessment | Competency assessment immediately ceases on termination of employment, regardless of later re-employment. Employees are not eligible for competency assessment where they have a break of at least one business day in the preceding 12 months. |
Payment of long service leave
MOP(S) Act employees with 1 to less than 10 years’ eligible service (or more) whose employment is terminated may be entitled to pro rata long service leave or payment in lieu of the pro rata long service leave. Eligibility for payment in lieu of long service leave depends on factors such as the reason for the termination of employment, length of service and age.
Further information can be found in the Final Entitlements Estimator.
Career transition payment
Former MOP(S) Act employees that receive severance benefits may obtain a payment of up to $1000 (GST inclusive) for career transition counselling, training or financial advice. Part-time employees can access the full amount. Eligibility criteria is outlined at clause 75 under the Enterprise Agreement which includes that the approved service is provided within six months of termination.
Please contact HR Advice if you require any further information about career transition payments including pre-approval requirements.
Exit interviews
MOP(S) Act employees may choose to participate in exit interviews to share their experience as a MOP(S) Act employee. It’s an opportunity to discuss:
- job satisfaction
- motivation
- induction, training and professional development opportunities
- leadership and management
- office infrastructure
- reward and recognition
- experiences accessing support services
- reasons for leaving MOP(S) Act employment.
If you wish to undertake an exit interview, please contact the HR Advice team.
While an exit interview is voluntary, all departing MOP(S) Act employees are encouraged to participate and provide feedback. Your participation improves the delivery of services by the PWSS and employment experiences of current and future MOP(S) Act employees.
In all cases, information provided through the exit interview is collected, stored and treated in the strictest confidence. Unless an employee elects to have their feedback provided to their employing parliamentarian, only the PWSS will have access to individual interview results.