You can be fired as an Australian employee at any time but they will still need to pay out the notice period in their contract and whatever accrued annual leave they had.
Most notice periods in AU are 4 weeks so you either are fired with 4 weeks notice or fired immediately and paid for those 4 weeks.
(The notice period also applies if you decide to leave the organisation)
The rule specifically is:
Can notice be paid out instead of worked?
Yes. An employer can either:
Let the employee work through their notice period, or
pay it out to them (also known as pay in lieu of notice).
If the employer pays out the notice, the amount paid to the employee must equal the full amount the employee would have been paid if they worked until the end of the notice period. This includes:
incentive-based payments and bonuses
loadings
monetary allowances
overtime
penalty rates
any other separately identifiable amounts.
If the employer pays out the notice, the employee does not accrue any annual leave for the notice period they were paid out for.
But employment in Australia is not at-will, so regardless of their obligations to pay out the notice period they also need to have a valid reason for the dismissal.
Specifically John Cramb (the Australian) was presenting alongside Josh Schwartz the director of offensive security. It seems that one could reasonably establish that John was acting under the directions of his superior, and that would mean that the default position would be to assume that his actions were sanctioned by the company unless they can prove that he knew otherwise.
And even then, they would be expected to provide a written warning, or justify why the violation was so extreme to justify immediate termination (which would be very difficult given he was active under the instructions of a superior).
Base on the limited evidence we have, it seems that Salesforce has unfairly dismissed John, and that the Californian executive ought to have consulted with an Australian HR lawyer before he acted.
I'm ignorant as far as Australian law. Is this true if the company is based in America and the worker is laboring either in America or remotely? It seems like at that point Australian law wouldn't directly apply to termination decisions.
Generally speaking, multinational companies will offer employment contracts through a local subsidiary. In that case the employment will fall under the laws of that country. And if they send you on an overseas business trip that doesn't change anything - even if the parent company is domiciled in that country.
If they don't have a local presence, and you're working remotely, then you're more likely to be a contractor and dismissal laws are pretty loose.
The interesting thing would be if they had a local subsidiary but chose to employ you on contract to the parent company. I suspect (but IANAL) that the Australian Fair Work Commission would determine that (if the contract was long term and indefinite) that you were actually an employee of the local subsidiary.
* your dismissal was harsh, unjust or unreasonable, and
* your dismissal was not a case of genuine redundancy, and
* if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code.
Personally I would consider this harsh, unjust and unreasonable, especially if this is the first time and the person doesn't have a lot of publicity experience.
Even if they have a corporate structure that seems to make the Fair Work Act not apply (say, making you a contractor of a foreign company), I'm pretty sure that the commission will still generally rule against the employer if you're effectively working as an employee and you take it to the ombudsman. So if, say, they provide office space and a computer, you work regular full-time hours and it's more than a temporary contract then it will usually be considered a sham contracting arrangement and you'll be eligible for all the standard full-time employment protections.
Are you an employee or a contractor? From among my circle of friends working for foreign companies the possible arrangements I've seen are: (a) employee of Australian subsidiary of foreign company (my situation) (b) employee, under a contract governed by Australian law, of a foreign company directly or (c) independent contractor of foreign company.
(a) and (b) give you Australian employment protections. (c) obviously only gives you whatever protections are in the contract.
I've never seen anyone under a contract of employment (rather than a contract for services) of a foreign company that purports to not be governed by Australian employment law.
Most notice periods in AU are 4 weeks so you either are fired with 4 weeks notice or fired immediately and paid for those 4 weeks.
(The notice period also applies if you decide to leave the organisation)
The rule specifically is:
Can notice be paid out instead of worked?
Yes. An employer can either:
Let the employee work through their notice period, or
pay it out to them (also known as pay in lieu of notice).
If the employer pays out the notice, the amount paid to the employee must equal the full amount the employee would have been paid if they worked until the end of the notice period. This includes:
incentive-based payments and bonuses loadings monetary allowances overtime penalty rates any other separately identifiable amounts.
If the employer pays out the notice, the employee does not accrue any annual leave for the notice period they were paid out for.
https://www.fairwork.gov.au/ending-employment/notice-and-fin...