Chapter 4: Leaving Public Service employment

• GSE Act s. 47 – Termination of Employment
• GSE Act s. 55 – Resignation
• GSE Act s. 56 – Retirement on Medical Grounds
• GSE Act s. 57 – Crown’s dispensation with services
• GSE Act s. 68 – Unsatisfactory performance of government sector employees
• GSE Act s. 69 – Misconduct - Public Service and other prescribed government sector employees
• GSE Act Sch. 4 – Savings, transitional and other provisions

• GSE Reg Sch. 1 cl 3 - Entitlement to extended leave if employment terminated in special circumstances
• GSE Reg Sch. 1 cl 4 - Payment of accrued leave on termination of employment
• GSE Reg Sch. 1 cl 5 - Leave to be paid out to dependants in cases of death

• GSE Rule 5 – Probation periods
• GSE Rule 10 – Maximum Period of Temporary Employment
• GSE Rule 14 – Termination of employment
• GSE Rule 36 – Dealing with unsatisfactory performance
• GSE Rules Part 8 – Misconduct-procedural requirements

Industrial Relations Act 1996No 17 pt. 7 div. 3

Subclauses 77.5 and 77.6

For guidance on the management of excess employees and workforce transition, refer to the Workforce Transition page of the Public Service Commission’s Employment Portal.

4.2.1.1 Certificate of Service

A letter stating the dates of employment and other details is to be issued to all employees who leave the service.

4.2.1.2 Notifying superannuation funds

The agency must notify the relevant superannuation fund or scheme without delay when a member dies or leaves the agency.

All leave credits are calculated as at the last day of service in accordance with the provisions outlined in this subsection.

4.3.1.1 Entitlements to be calculated to the next highest quarter day

Recreation leave for which an employee is eligible on cessation of employment is calculated to the nearest quarter day, with periods less than a quarter day rounded up.

4.3.1.2 Payment for accrued leave – options

On ceasing employment, an employee is entitled to be paid the monetary value of accrued recreation leave which remains untaken. The employee may elect to take accrued recreation leave as leave, as a lump sum payment; or as a combination of leave and a lump sum payment.

If an employee elects to take some or all accrued recreation leave as leave, further recreation leave will continue to accrue during the nominated period of leave. Recreation leave accrued in respect of the nominated period of leave must be paid for in a lump sum on the last day of service or shortly thereafter.

4.3.1.3 Effect of salary adjustment – last day of service

If the last day of service falls on or after the date of effect of a salary adjustment under an industrial instrument, the monetary value of leave is based on the new salary rate.

4.3.1.4 Retirement on medical grounds

For the purposes of initially determining the last day of service of an employee declared to be medically unfit to continue in the Public Service, as defined in Schedule 1 – Public Service agencies of the GSE Act, it is assumed that the value of accrued recreation leave will be taken as a lump sum.

Agencies must therefore inform the employee of the last day of service, as initially determined. The employee may then elect to exercise one of the options in 4-3.1.2, payment for accrued leave – options. When practicable, this election should be in writing.

4.3.1.5 Death of an employee

See 4.6.2 Payment for leave on the death of an employee.

On termination of services, an employee who has acquired a right to extended leave is to be paid in lieu of such leave the monetary value of accrued and untaken extended leave. Payment is to be made at the rate of salary of the employee’s ongoing role and fractions of less than a quarter day are to be taken to the next higher quarter day. If the employee has received HDA for the 12 months prior payment is as per 6-5.4.3 Above Level Allowance of this Guide.

4.3.2.1 Payment of extended leave on resignation to join a union

An employee who resigns from the Public Service and obtains employment with a union is paid the monetary value of accrued extended leave. It is not paid to the union.

4.3.2.2 Payment of proportionate extended leave

The question of payment of proportionate extended leave arises when an employee has completed service of at least 5 years but less than 10 years (or less than 7 years from 1 January 2005 for some employees) and the employment is being terminated:

• either by the employer for any reason other than the employee’s serious and intentional misconduct; or
• by the employee on account of illness, incapacity or other domestic or pressing necessity.

Instances in which payment of proportionate extended leave must be made on completion of at least 5 years’ service are:

• medical retirement
• voluntary redundancy
• retrenchment
• voluntary retirement at 55 years of age or older
• termination by the employer for any reason other than serious and intentional misconduct of the employee
• termination by the employee, if evidence proves that the termination was brought about by illness or incapacity of the employee or of a member of the employee’s family, or by other reasons that constitute domestic or pressing necessity

and

• on resignation following election of the employee as a member of State or Federal Parliament and
• on the death of the employee.

4.4.1.1 Giving notice

The timeframe required for notifying resignation is set out in the relevant industrial instrument. Otherwise reasonable notice should be given as decided by each Agency Head.

4.4.1.2 Bonded or indentured persons

Resignations received from bonded or indentured people must not be accepted until the liabilities relating to the bond are determined.

Compulsory retirement based on age is unlawful in New South Wales.

Under Part 4E of the Anti-Discrimination Act 1977  it is unlawful to:

• retire an employee from employment; or
• require an employee to retire from employment; or
• threaten to retire an employee from employment; or
• engage in conduct with a view to causing an employee to retire from employment on the grounds of age. Firefighters, coalminers, police and judicial officers are excluded from the general prohibition on compulsory retirement.

4.5.1.2 Voluntary retirement

It is up to individual employees to decide when they retire.

Those who decide to retire should give notice of their intention in the same manner as they would notify their intention to resign.

Employees considering options for retirement should consult their own superannuation fund or scheme for advice on the superannuation aspects of retirement in their particular situation. Agencies must always notify the relevant superannuation fund when a member retires.

4.6.1.1 Last day of service

In such instances the last day of service is the date of death. All final entitlements should therefore be calculated as at that date.

4.6.2.1 Payment of entitlement

If an employee dies, the recreation and extended leave entitlements are to be calculated up to and including the date of death.

The monetary value of all recreation leave and extended leave accrued, but not taken at the date of death (including the balance of leave which has been partly taken), is to be paid to the employee’s nominated beneficiary. If no beneficiary has been nominated, the monetary value of the leave is to be paid to the following in order:

• the spouse of the employee; or if none
• children of the employee (including adult sons and daughters, not necessarily dependent) or, if there is a guardian of the children then to the guardian for the children’s maintenance, education and welfare; or if there is none
• other dependent relative(s); or if none
• to the employee’s estate.

4.6.2.2 Evidence of relationship to employee

Agencies need to be satisfied as to the relationship of the claimant to the employee and should request such evidentiary information to support the relationship.

4.6.2.3 Deceased estates

Payment of any unpaid salaries, wages, allowances, overtime or expenses due to the deceased are to be paid to the estate.

Such payments are not to be made until probate of the will or letters of administration have been produced.

If there are no assets or insufficient assets to warrant the expense of applying for the formal grant of administration or probate, the cost of the funeral expenses may be paid from any unpaid monies due to the deceased, to the person who paid the funeral expenses. This is subject to Ministerial approval and the production of a receipt for the funeral expenses and a statutory declaration to this effect.

If the unpaid monies exceed the funeral expenses, any existing will should be sighted. The statutory declaration should clearly establish that excess monies are being paid to all the beneficiaries. If in doubt, seek advice from the Public Trustee.