I was recently made redundant. I worked through my notice period. My EA has a stated minimum 12 weeks severance pay and my employer said that my pay through the notice period counts towards the minimum.
The definition in the EA defines severance pay as:
They are pointing at the following text to indicate they don't have to pay.
13.3.2 'Payment in lieu of the prescribed notice in Sub-clause 13.3.1 must be made by employer only if the appropriate notice period is not required to be worked.'
Am I right in saying it doesn't count towards the 12 weeks? (For me this is pretty clear but my employer has refused to listen and has paid me a severance pay of 6 weeks). I read the sentence above as it is up to the employer as to whether they want an employee to work the notice period. The other clauses in 13.3 detail the notice period and the lose of notice pay if employment is terminated during the notice period.
Also in not paying any extra compensation for having worked the notice period are they in contravention of the National Employment Standards (NES)? I was told that under the NES you are due an extra two weeks if you work the notice period. (they have indicated that I am above the NES purely on the basis I am getting 6 weeks for 2 years). Is a comparison done on a total basis or on a entitlement by entitlement basis?
As they are being exceptionally difficult and have proudly said they are doing this to everyone in that redundancy situation, I want to make sure they get their fair treatment which may involve fines (if they are the wrong side of the NES?)
Any advice appreciated
The definition in the EA defines severance pay as:
- salary in-lieu of notice in accordance with Clause 13.3, plus
- three weeks salary for each completed year of service, plus
- a pro-rata payment for each completed month of service in the final year of
service
They are pointing at the following text to indicate they don't have to pay.
13.3.2 'Payment in lieu of the prescribed notice in Sub-clause 13.3.1 must be made by employer only if the appropriate notice period is not required to be worked.'
Am I right in saying it doesn't count towards the 12 weeks? (For me this is pretty clear but my employer has refused to listen and has paid me a severance pay of 6 weeks). I read the sentence above as it is up to the employer as to whether they want an employee to work the notice period. The other clauses in 13.3 detail the notice period and the lose of notice pay if employment is terminated during the notice period.
Also in not paying any extra compensation for having worked the notice period are they in contravention of the National Employment Standards (NES)? I was told that under the NES you are due an extra two weeks if you work the notice period. (they have indicated that I am above the NES purely on the basis I am getting 6 weeks for 2 years). Is a comparison done on a total basis or on a entitlement by entitlement basis?
As they are being exceptionally difficult and have proudly said they are doing this to everyone in that redundancy situation, I want to make sure they get their fair treatment which may involve fines (if they are the wrong side of the NES?)
Any advice appreciated