It’s widely believed that as an executive employee you have no rights when it comes to termination. This isn’t, in fact, true. While it is correct you can’t apply for ordinary unfair dismissal through the Fair Work Commission, as a high-income earner (earning more than $145,400) this doesn’t mean you lose your rights all together. There are some alternative options, depending on your circumstances. In fact, these may turn out be more valuable avenues for you, since the maximum compensation is not limited in the same way it is for unfair dismissal.
What rights do I have?
No employee can be dismissed, no matter how much they earn, on the basis of age, gender, race, religion, disability, family responsibilities or sexual orientation. If you believe you have been fired on the basis on discrimination, it is important to take advice promptly, since strict time limits apply.
Aside from discrimination, there are also additional protections for all employees and independent contractors, regardless of your earnings level if you lose your job, or suffer other mistreatment. Known as general protections, these rights specify when it will be unlawful to dismiss you, or suffer other adverse action. General protections include making enquiries about your employment or raising a complaint about your treatment (such as a demotion, an unfair disciplinary process, or disputes over bonuses).
General protections are often relevant in any cases where there has been a dispute at work before the dismissal. It's also unlawful to terminate employment because of temporary absence, where you have a medical certificate or are on carer’s leave. If you believe you have been fired for exercising any of these general protections, you need to act quickly as a strict 21-day time limit applies.
Given the earnings cap for unfair dismissal, the simplest and most important protection for executives in a dismissal situation is generally to have longer periods of notice written into contracts. This offers an element of financial security, since it focuses on a straightforward high value payment on termination, rather than a dispute about the reasons why. If you are moving roles, it's always important to look closely at the notice period when reviewing a new contract.
It's always sensible to seek independent legal advice from an employment law expert when negotiating a new contract to ensure the best outcome for your future security. This can be done confidentially without your new or existing employer needing to be aware.
Your employer may invite you to accept a payment and agree to terms of departure. Before doing so, it's important to take advice first. You will want to check that you are not giving up more valuable rights than the deal on the table, and also to see if there may be a more favourable way to negotiate the exit in your interests. Due to the strict time limits, it's important to take advice urgently, so that you still have time to take any necessary steps to protect your position.
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Written by Shine Lawyers. Last modified: May 9, 2019.