Ending Your Employment

Find Your Lawyer

  Search Now

Ending your employment

Download this Fact Sheet

Ending your Employment Legal Fact Sheet

Fast Facts

Leaving your employment can be a stressful and/or exciting time, depending on the circumstances, but it does not have to be confusing. However an employment may end, it's important that both the employer and employee follow the rules about dismissal, notice and final pay.
This fact sheet will discuss:

  • Notice period;
  • Dismissal
    • Unfair dismissal;
    • Unlawful termination; and
    • Summary dismissal
  • Redundancy;
  • Post-employment restraints; and
  • Final pay entitlements

Notice Period

The National Employment Standards (NES) under the Fair Work Act 2009 sets out the minimum amount of notice that must be given when ending employment. The NES applies to all employees (other than casuals) covered by the national workplace relations system, regardless of any relevant award, agreement or employment contract.
An employer has to give the following minimum notice period when dismissing an employee:


Period of continuous service 

Minimum notice period

1 year or less

1 week

More than 1 year - 3 years

2 weeks

More than 3 years - 5 years

3 weeks

More than 5 years

4 weeks

*If the employee is aged 45 years and over, and has completed at least 2 years of continuous service, that employee is entitled to an extra 1 weeks' notice.
The above notice periods do not apply to employees employed for a specific period of time or task, casual employees, or employees who are dismissed due to serious misconduct.
The period of notice an employee must provide to their employer will generally be set out in their employment contract and/or award and will usually be the same as required by the employer. There is no requirement for an employee to give additional notice based on their age.
Note: some employee contracts, enterprise agreements or awards can provide for a longer notice period.

Dismissal

Unfair dismissal

Were you dismissed from your job in a harsh, unjust or unreasonable manner?
Eligibility
To be eligible to make an application for unfair dismissal you must have been employed for at least:
1 year - at a small business employer (less than 15 full-time equivalent employees); or
6 months - (15 or more full-time or equivalent employees).
Contractors are not eligible to lodge an unfair dismissal claim.
We recommend that you seek advice from an employment lawyer from our 'Find Your Lawyer' service if you were dismissed and:

  • The dismissal was harsh, unjust or unreasonable;
  • The dismissal was not a case of genuine redundancy;
  • You were forced to resign; and/or
  • You worked for a small business and the dismissal was not done according to the 'Small Business Fair Dismissal Code.'

What is harsh, unjust or unreasonable?
In considering whether a dismissal was harsh, unjust or unreasonable, Fair Work Australia will consider whether there was a valid reason for the dismissal related to your capacity or conduct. They will also consider many other factors such as whether you were notified of that reason, whether you had an opportunity to respond and whether you had been warned about the conduct relating to dismissal.
If you have been unfairly dismissed, you only have 21 days from the date of your dismissal to lodge a claim.

Unlawful termination

Unlawful termination is when an employee is dismissed you for one of the following reasons:
A person's race, colour, sex, sexual orientation, age, mental or physical disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply)

  • Temporary absence from work because of illness or injury
  • Trade union membership or participation in activities
  • Absence due to paternity or parental leave
  • Temporary absence from work to engage in a voluntary emergency management activity; or
  • Exercising or planning to make a complaint or injury in relation to your employer

Summary dismissal

Summary dismissal is dismissal without notice, requiring no advance notice to the employee, with wages only paid to the time of dismissal.
There are limited circumstances were summary dismissal is appropriate. The Fair Work Commission will assess the case depending on the terms of the employees' contract, their role, duration of employment, the probation period and the nature of the employees' behaviour.
If you have been summarily dismissed, we recommend you seek advice from an employment lawyer from our 'Find Your Lawyer' service. 

Redundancy

A redundancy may occur in many different workplace situations, and your lawyer will be able to discuss with you whether your redundancy is genuine. A dismissal is a genuine redundancy when:

  • The employer no longer needs an employee to carry out the role; and
  • The employer cannot redistribute you to alternative role and
  • The employer has complied with any obligation under a relevant modern award or enterprise agreement to consult about the redundancy.

Note: a dismissal is not a genuine redundancy if it would have been reasonable to redeploy the person within the employer's enterprise or the enterprise of an associated entity of the employer.
Are you entitled to a financial settlement?
Redundancy payment is not required to be paid out if:

  • The employer is a small business employer (fewer than 15 employees)
  • The employee been with the employer for less than 12 months;
  • The employee is casual;
  • The termination is because of serious misconduct;
  • The employee is employed for a specific task or limited period; and/or
  • The employee is an apprentice.

Under the NES, an employer must provide the following minimum payment:


Period of continuous service

Redundancy pay 

At least 1 year but less than 2 years

4 weeks

At least 2 years but less than 3 years

6 weeks

At least 3 years but less than 4 years

7 weeks

At least 4 years but less than 5 years

8 weeks

At least 5 years but less than 6 years

10 weeks

At least 6 years but less than 7 years

11 weeks

At least 7 years but less than 8 years

13 weeks

At least 8 years but less than 9 years

14 weeks

At least 9 years but less than 10 years

16 weeks

At least 10 years

12 weeks*

Post-Employment Restraints

Restraint clauses place restrictions on where and for whom you may work after you leave employment, as well as what types of activities you may engage in. In an employment contract, this can include 'non-solicitation' and/or 'non-compete' clauses. A restraint clause will only be enforced by a court where it goes no further than reasonably necessary to protect a legitimate business interest.

Need Advice?

Find your lawyer legal referral service
T: 9607 9550
W: http://www.liv.asn.au/Referral


Legal community centre
T: 03 9652 1500
W: http://www.communitylaw.org.au


Victoria Legal Aid
T: 9269 0120 or 1800 677 402
W: http://www.legalaid.vic.gov.au

Find your Lawyer

Please note the above information is not intended to, and does not encompass all aspects of the law on this subject matter. Further professional advice should be sought before action is taken based on matters outlined on this page.

- March 2018

LIV Social
Footer