"My employee has handed in their resignation and it states, ‘with immediate effect.’ What are my rights as the employer, and what are my employee's rights and obligations in terms of termination in accordance with the HCSBC?"
When an employee submits a resignation with immediate effect, it can be a complicated situation for both the employer and the employee, especially in terms of the rights and obligations under the HCSBC (Hairdressing, Cosmetology, Beauty and Skincare Council) Main Collective Agreement.
Employer’s Rights and Obligations:
Notice Period: The HCSBC agreement specifies that both the employer and employee must adhere to a notice period when terminating employment. However, if the employee has resigned with immediate effect, the employer is entitled to enforce the notice period as per Clause 23.1, unless both parties agree otherwise. The employer can request the employee to work the remainder of the notice period.
Waiving the Notice Period: The employer has the option to waive the notice period and instead pay the employee in lieu of notice. This means the employer can compensate the employee for the notice period without requiring them to work it. This is outlined in Clause 23.2 and is dependent on the length of employment:
1 calendar day’s remuneration if employed for 1 month or less.
1 week’s remuneration if employed for more than 1 month but less than 6 months.
2 weeks’ remuneration if employed for more than 6 months.
Termination Without Cause: The employer also has the right to terminate the employee without notice if there is a justifiable cause for dismissal, such as misconduct or other lawful reasons (Clause 23.4.1). In such cases, the employee would not be entitled to the notice period or pay in lieu of notice.
Illness and Temporary Absence: The employer may not terminate the employee’s services during their temporary absence due to illness if the proper procedures are followed, as outlined in Clause 23.5.
Unfair Dismissal: If the employee believes the resignation or termination was handled unfairly, they may claim an unfair dismissal under Clause 23.4.2. In this case, the employer should ensure that the termination process is fair and in compliance with the collective agreement.
Employee’s Rights and Obligations:
Notice Period: The employee is obligated to provide notice when resigning, as stated in Clause 23.3. However, if the employee is resigning with immediate effect, they must compensate the employer by paying for the notice period, as detailed in the clause:
1 calendar day’s remuneration if employed for 1 month or less.
1 week’s remuneration if employed for more than 1 month but less than 6 months.
2 weeks’ remuneration if employed for more than 6 months.
Termination Without Notice: As per Clause 23.4.1, the employee may terminate their employment without notice in the event of valid reasons recognized by law, such as a constructive dismissal or other severe issues.
Claim for Unfair Dismissal: The employee can claim unfair dismissal if they feel their resignation was forced or if they were not provided with proper working conditions, as outlined in Clause 23.4.2.
Illness and Absence: Employees are protected from termination during a temporary illness, provided they notify the employer and submit a medical certificate within a reasonable time frame (Clause 23.5).
The employer’s rights and obligations focus on ensuring compliance with the notice period or accepting pay in lieu of notice, while also having the option to terminate for valid reasons.
Employees have the right to leave without notice, but they must compensate the employer for the notice period, unless they have a valid reason for immediate departure.
Both parties should ensure they follow the procedure outlined in the HCSBC’s Clause 23 to prevent legal issues, and employers should seek guidance from the EOHCB if further clarification is needed.
