|
Termination of employment means the ending of the employment between the employer and employee.
This happens in one of three ways:
1. the employee ends the employment, eg by resigning, retiring, or abandoning the employment;
2. the employer ends the employment, eg by dismissing the employee or making them redundant; or
3. circumstances occur which end the employment, eg the employee dies, or the contract expires because it was for a fixed term and its end date is reached.
Alternatively, either party may end the contract by fundamentally breaching it in some way or by changing it in a way that is so substantial that the existing contract no longer applies and the other party accepts the breach as ending the contract.
Termination of employment due to redundancy is a form of dismissal by the employer. It carries with it the concept of involuntary termination of the employee’s employment. However, rather than being a fault based dismissal, redundancy is usually caused by factors such as economic conditions, business efficiency, or technological development.
Generally speaking, termination of employment due to redundancy occurs where:
Notice periods
It is important that both employer and employee adhere to the required notice period on termination. The minimum amount of notice under the Fair Work Act is:
|
Employee's period of service with the employer
at the end of the day notice is given |
Period of Notice |
|
|
1 week |
- More than 1 year but not more than 3 years
|
2 weeks |
- More than 3 years but not more than 5 years
|
3 weeks |
|
|
4 weeks |
(Note that employees who are over 45 years of age and have worked 2 years or more are entitled to an extra week's notice.)
The notice prescribed under the Act is the minimum notice that should be given to terminate the employment. If an employee’s contract, award or enterprise agreement prescribes a grater period of notice, that greater period must be given.
The notice does not apply in all termination situations, eg summary dismissal. Specific advice on relevant notice periods should be sought.
Types of dismissal
The more common type of dismissal is dismissal with notice or payment in lieu of notice. However, summary dismissal (without notice) may occur where an employee’s conduct amounts to serious misconduct sufficient to justify instant dismissal.
What are general protections?
The relevant legislation prohibits an employer from dismissing, or adversely affecting the employment of an employee, on prescribed grounds. What was previously called unlawful dismissal is now called ‘general protections’ dismissal in the Fair Work Act. For more information on general protections under the Fair Work Act, see the Equal Opportunity and Privacy tab on the HR Advance website.
What is Unfair dismissal?
Unfair dismissal is termination at the initiative of the employer in circumstances that are 'harsh, unjust or unreasonable'. An unfair dismissal claim can be made by an eligible employee to Fair Work Australia within 14 days of the dismissal.
| 
