Cessation of Employment — Teaching Service

Overview

A person’s employment can end at the instigation of the employee, at the instigation of the employer or due to the operation of law.

A person employed for a fixed period ceases employment at the conclusion of the fixed period.

In the event of the death of an employee, the procedures available in the Resources tab should be completed as soon as possible. These procedures include the requirements for advising the deceased person's superannuation fund and the legal requirements relating to the payment of any salary or unused leave entitlements.

Cessation at the instigation of the employee — resignation or retirement

An employee may elect to end their employment at any time by either resigning or retiring.

Employees are encouraged to provide as much notice as possible of their resignation or retirement to assist the workplace in workforce planning. The following minimum notice periods apply.

Teaching service

• principal and executive class employees — in accordance with their Contract of Employment (12 weeks or such other period as agreed in writing by both parties)
• other teaching service employees — no minimum applies

To avoid any confusion or misunderstandings and to assist the principal in determining that an employee has made a genuine decision to resign or retire, the employee’s notice of cessation should be in writing, unless circumstances do not permit. The notice should include:

• the date from, and inclusive of which, employment is to cease (note: unless otherwise stated, an employee’s cessation of employment will take effect from the close of business on the date nominated in the notification of the resignation or retirement)
• contact details for future communication purposes (including a private address to which correspondence may be sent if different to that already recorded on the payroll)
• any other information the employee wishes to provide, such as a reason for the cessation

A Notice of Cessation of Employment form is available in the Resources tab, for any employee who wishes to use it.

The employer must be reasonably satisfied that the employee’s resignation or retirement is unequivocal and a voluntary exercise of their intention to terminate their employment. Where there is cause for doubt, the employer should not accept the notice of cessation without first seeking clarification from the employee about their intentions.

Where the employer is satisfied that it is a genuine resignation or retirement, the employee’s notice of cessation should be accepted in writing.

Once an employee’s notice of cessation has been formally accepted by the employer, the resignation or retirement has taken effect and it cannot be withdrawn without the approval of the employer.

An employee is required to resign if elected to State Parliament or if they wish to contest a Federal Election (refer to Elections — Employees Contesting Parliamentary Elections).

On their resignation or retirement, an employee’s years of service can be recognised in a number of ways, including a statement of service issued by the Department (refer below). School communities and, or principals and managers are encouraged to formally recognise the service and contributions that an employee who retires or resigns has made to their school community or work location and the broader government school system or public service.

Cessation at the instigation of the employer

The employer may terminate the employment of an employee in the following circumstances:

• retrenchment (refer to Excess Procedures — Teaching Service),
• annulment (refer to Probation — Teaching Service)
• following an inquiry into fitness for duty (refer to Fitness for Duty)
• due to unsatisfactory performance or misconduct (refer to Complaints, Misconduct and Unsatisfactory Performance)

Termination of employment will be in accordance with the applicable Department policy guidelines.

Under the Fair Work Act 2009 an employee cannot have his or her employment terminated for a prohibited reason (further information is available from the Fair Work Ombudsman).

Where the employment of an employee is terminated the employee must be provided with the following minimum period of notice in writing:

Teaching service

Employees in the teaching service must be provided with at least 4 weeks' notice of termination.

The notice of termination is increased by 1 week if the employee is over 45 years of age and has completed at least 2 years' continuous service with the Department.

If the employee is over 45 years old and has completed at least 2 years of continuous service the period of notice should be increased by 1 week.

Where the required period of notice is not provided or the employee is not required to work the notice period that period must be paid in lieu of notice. Payment in lieu of notice will be calculated based on the amount the employee would have received had they worked during the notice period.

The Fair Work Act 2009 provides for a review mechanism for a person who considers their employment has been terminated unfairly. The person is able to lodge an application with the Fair Work Commission for relief in relation to termination of employment on the grounds that the termination was harsh, unjust or unreasonable. For further information, refer to the Fair Work Commission.

Cessation due to the operation of a law

An employee’s employment may be terminated due to the operation of a law in the following circumstances:

• as a result of the employee abandoning their employment (refer to Absent Without Leave — Unauthorised Absences)
• where the employee ceases to be registered or have permission to teach in accordance with the provisions of Part 2.6 of the Education and Training Reform Act 2006
• where the employee ceases to hold a valid Working With Children (WWC) Check where one is required

Payment in lieu of entitlements

On cessation of employment (including the expiration of a fixed period of employment) an employee is entitled to payment in lieu of long service leave, annual leave (including additional paid leave for education support class employees) and annual salary loading allowance as set out below.

Long service leave

An employee who ceases employment with at least 7 years' service will be paid in lieu of their accrued long service leave entitlement. If the cessation is as a result of age or ill health which is deemed to be permanent, payment in lieu of long service leave entitlement is made after 4 years' service.

An employee who does not wish to be paid their long service leave entitlement on cessation should complete and submit the Long Service Leave Election form (refer to the Resources tab for forms).

There is no facility available for a person to repay to the Department any leave or other entitlements which have been paid on termination.

Where an employee with at least 4 years' service dies, payment in lieu of unused long service leave will be made to the employee’s personal legal representative.

Annual leave and annual salary loading allowance

An education support class employee who ceases employment will be paid in lieu of their unused annual leave and loading allowance.

Employees in the teaching service (other than education support class employees) are not paid in lieu of annual leave or salary loading allowance on ceasing employment. Provided that where the cessation is as a result of age or ill health the employee is paid in lieu of any unpaid salary loading allowance.

Where an employee dies, any payment in lieu of annual leave or loading allowance will be made to the employee’s personal legal representative.

For the purposes of determining an employee’s entitlement to payment in lieu, an employee is deemed to have ceased:

• on account of age — if on or after attaining the age of 55 years they cease to be employed
• on account of ill health — if they produce to the delegate satisfactory evidence that their ceasing to be employed is due to ill health which is likely to be permanent

Statement of service

An employee or former employee may request a statement of service from the Department or a school council as evidence of their employment.

School-based employees should submit their request for a statement of service to their current school or last school if no longer employed.

Additional information

The Department holds corporate membership with National Seniors Australia which entitles employees to attend free pre-retirement planning seminars and access to financial and other advice (refer to the Resources tab).

Prior to ceasing employment, an employee is encouraged to contact their superannuation fund for advice about their entitlements, particularly where it is likely that the employee will cease employment on the grounds of ill health.

Employment separation certificates are required by Centrelink to determine eligibility for various benefits. If a former employee requests a certificate, the employer must provide it (refer to the Resources tab).

Related policies

• Absent Without Leave — Unauthorised Absenses
• Complaints, Misconduct and Unsatisfactory Performance — Teaching Service
• Elections — Employees Contesting Parliamentary Elections
• Employment Limitation
• Excess Procedures — Teaching Service
• Fitness for Duty
• Probation — Teaching Service
• Superannuation

Relevant legislation

• Education and Training Reform Act 2006 (Vic)
• Ministerial Order 1038
• Victorian Government Schools Agreement 2017

Contact information

• Contact HR

There is no further guidance for this topic. For more information, refer to Employment Limitation Policy and Guidelines.

Resources

Procedures and forms

• Notification to resign or cease employment (Word)
• Cessation of employment administration procedures (Word)
• Death of an employee administration procedures (Word)
• Long Service Leave Election form (Word) — for an employee to request that long service leave not be paid on cessation of employment

Useful links

• Centrelink — Employment Separation Certificates
• National Seniors Australia