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Australia: Termination of employment

Original and updating authors: Shana Schreier-Joffe and Dean Tolkin

Consultant editor: Nicholas Furlan

Summary

  • An open-ended contract of employment can generally be terminated by the employer or employee with notice at any time, while termination without notice may be justified if the other party has breached the contract. (See General)
  • Employees are generally entitled to statutory minimum notice of termination of their employment by the employer. (See Notice periods)
  • Where an employee is in serious breach of his or her obligations, an employer can generally terminate the employment relationship immediately without notice. (See Summary dismissal)
  • An employee may be entitled to resign without giving notice if the employer repudiates the contract of employment, which can include forcing an employee to resign because of conduct engaged in by the employer. (See Constructive dismissal)
  • Under federal legislation, a dismissal that is a case of "genuine redundancy" is potentially fair, while certain employees are entitled to statutory redundancy pay from their employer. (See Redundancy)
  • In general, employers cannot require employees to retire at any age and employees are free to choose when to retire. (See Retirement)
  • Under federal legislation, employees who have completed a certain "minimum employment period" with their employer (six months, but one year where the employer has fewer than 15 employees) may claim that their dismissal was unfair, on the grounds that it was harsh, unjust or unreasonable, or not a case of genuine redundancy or, in the case of employers with fewer than 15 employees, not consistent with an official code setting out principles and procedures for fair dismissal in small businesses. (See Unfair dismissal)
  • Federal employment legislation provides protection for employees from dismissal on various prohibited grounds, such as unlawful discrimination. (See Other dismissal protection)
  • Employees are, or may be, entitled to various payments on termination of employment, and employers may be required to provide or retain certain documentation. (See Termination payments and finalising employment)
  • Under federal legislation, eligible employees may bring a claim for unfair dismissal at the Fair Work Commission (FWC), where the primary remedy is an order for reinstatement (with compensation available only where reinstatement is inappropriate). The FWC also deals in the first instance with claims of dismissal for prohibited reasons - in such cases, if the FWC cannot resolve the matter through conciliation or arbitration, the applicant may bring a court case, seeking a range of remedies, including reinstatement and compensation. (See Contesting dismissals)