Guide to termination and unfair dismissal rights of - Legal ...

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The employer’s obligations to give noticeIn order for an employer to terminate an employee’s employment the employer is in many cases required to givenotice. Notice is the amount of time an employer is legally required to give to an employee between informing theemployee of the termination and the last day of employment.For example, if an employer is legally required to give an employee 4 weeks notice, then at least 4 weeks mustpass between the date upon which notice is given and the last day of employment. The minimum notice requiredis set out in the applicable table in the FWAct. 6 The table is set out on page 6 of this guide.Notice may be given pursuant to a notice provision in the employee’s contract of employment, award or enterpriseagreement. 7 The FWAct contains notice provisions which state the minimum notice that employers must giveto employees where notice must be given. 8 The notice provisions in the FWAct apply to all employees whoseemployment is covered by the FWAct. 9 In NSW all private sector (non government) employees are covered by theFWAct.Notice by the employer must be given to the employee in writing. 10Payment in lieu of noticeIn most circumstances an employer is legally able to make a payment to the employee instead of giving actualnotice. 11 Using the example above, if an employer is to give 4 weeks notice, the employer may terminateemployment immediately. However, in such a case the employer must pay the employee 4 weeks wages or salary.This is referred to as a “payment in lieu of notice”.An employer may give an employee a combination of actual notice and a payment in lieu of notice. So usingthe example of 4 weeks notice, the employer may require the employee to work for 2 weeks and then concludeemployment (after the 2 weeks) with a payment for a further 2 weeks in lieu of notice.Termination without noticeBefore considering specific notice entitlements, it is important to take note of the circumstances where thetermination of employment by the employer may occur without the legal requirement to give notice. Some of thesecircumstances were identified in the earlier parts of this guide. The following is a more comprehensive statementand explanation of the circumstances where notice is not required under the FWAct:• Where an employee is employed for a specified time. 12 For example, where an employee is employedunder a 12 month contract and the 12 months pass without an agreement to extend the contract. Theemployment will end at the conclusion of 12 months without any act of termination by the employer or theemployee.13• Where an employee is employed for a specified task and the task is completed. For example,where an employee is hired to work on a special project or a special event and the project or specialevent comes to an end.Where an employee is employed for the duration of a season and the season comes an end• . 14Examples of this can be found in tourism and agricultural industries. A snow skiing instructor may behired only for the winter and a fruit picker may be employed only for the season when the fruit is to beharvested. In each example employment will come to an end with the end of the season. Neither theemployer nor the employee will terminate the employment.5
• An employer is not legally required to give notice under the FWAct where an employee’s actionsamount to serious misconduct. 15 In other words, the notice entitlements under the FWAct do notapply to serious misconduct situations. However, it will still be necessary for the employer to inform theemployee of the termination of the employee’s employment and the reason for the termination. Theremay be a dispute between the employer and employee about whether or not the conduct occurred orwhether or not it was serious misconduct. The dispute may lead to an unfair dismissal claim or someother legal claim.16• Where the employee is a casual employee. True casual employment consists of a series ofemployment periods without an expectation of ongoing work. This is a difficult area of employment lawbecause there is a fine line between permanent work and casual work.For example, a shift worker who is contacted by the employer ahead of each roster period and is given avariety of shifts each time, or sometimes no shifts, will likely be a casual. It is not necessary to terminatethe employment of this type of worker. The employer may simply choose not to offer any more shifts. Acontrasting situation would be where a shift worker works the same shifts over a long period of time,where the work situation gives the employee a real expectation of regular shifts in the future and theperiod of this arrangement is open ended. It is unlikely that a worker in this situation is truly a casualemployee.• Where an employee works under a training arrangement for a specified period and where it isagreed that employment will last for the length of the training period. 17 This will often apply toemployees described as trainees. However it is important to note that this category of exclusion doesnot apply to apprentices because of the specific wording of the relevant provision of the FWAct.Accordingly, it is necessary to give notice to an employee who is an apprentice, despite the fact that theapprenticeship may be coming to an end.The FWAct contains an anti-avoidance provision to protect employees. The provision prevents employers frommisusing the above categories to avoid notice obligations. The provision applies where the substantial reasonfor employment under the category was to avoid notice obligations. 18 A good example of this may be “casual”employment. If an employer hires an employee to work regular part time hours but calls the employee a casual toavoid notice requirements, the anti-avoidance provision will operate. This will mean that the employer must stillgive termination notice under the FWAct.Finally, there are a number of other categories of employment where the giving of notice is not required. Insummary these include: daily hire employees in the building and construction industry; some daily hire andweekly hire employees in the meat industry. 19Notice entitlement amountsNotice entitlements are calculated in accordance with Table 1 below, which is found in the FWAct. 20 The period ofemployment coincides with the entitlement and the stated entitlements are not cumulative.Table 2PeriodEmployee’s period of continuous service with the employer atthe end of the day the notice is givenPeriod*1 Not more than 1 year 1 week2 More than 1 year but not more than 3 years 2 weeks3 More than 3 years but not more than 5 years 3 weeks4 More than 5 years 4 weeks*IMPORTANT – Where an employee is over 45 years of age and has completed at least 2 years of continuousservice, then the employee is to be given or paid 1 extra week of notice.6
Page 1: Guide toTermination of Employment &
Page 5: Termination of EmploymentWhat is a
Page 9 and 10: Unfair Dismissal RightsSince 1994,
Page 11 and 12: c)d)the dismissal was not consisten
Page 13 and 14: Section 387 requires that FWA consi
Page 15 and 16: Procedures in unfair dismissal clai
Page 17 and 18: about informing himself or herself
Page 19 and 20: Further Help•••The Fair Work
Page 21 and 22: 7 The new, and somewhat standardise
Page 23 and 24: 35 See note 34 above.36 s384. The t
Page 25: 82 s394(3). The Explanatory Memoran

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