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Termination

By the time an employer or employee arrives at the decision that terminating a contract is the only option available to them, many events have occurred to break the relationships required to ensure an employer : employee relationship remains sustainable.

There are a range of risks associated with termination that should not be under-estimated and need to be actively managed as a result. If you have arrived, very unfortunately for everyone, at this point this is the information you need to ensure you are adequately informed about:

What is unfair dismissal?

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.

The Fair Work Commission (the Commission) external-icon.png decides on cases of unfair dismissal.

How do i dismiss an employee fairly?

Fairwork have a range of resources that assist business to get the dismissal/ termination of an employee right. If you have decided on this course of action you should take care to ensure that if the process was ever tested legally that you can demonstrate that the process was fair, considered and reasonable in the circumstances. You should therefor use the Fairwork templates to your advantage:

Small business fair dismissal code checklist

Are there any termination letter templates available?

Fairwork provide great template letter resources, which are provided here:

When is a registrar able to lodge a claim of unfair dismissal?

Organisations of 15 employees or less:

Employers can choose to terminate a contract on the basis that a registrar has not successfully completed their probation if a registrar has worked for the organisation for a period of less than 12 months. An employee is not eligible to lodge a Fairwork unfair dismissal claim where they work for a small business (less than 15 people) for less than 12 months.

Organisations of more than 15 employees:

Employers can choose to terminate a contract on the basis that a registrar has not successfully completed their probation if a registrar has worked for the organisation for a period of less than 6 months. An employee is not eligible to lodge a Fairwork unfair dismissal claim where they work for a business (over 15 people) for less than 6 months.

Is there a time limit to lodging an unfair dismissal claim?

Yes. Employees, if they are going to lodge with Fairwork have 21 days to lodge an application from the date of the letter of termination. Exceptions to this rule may be made at Fairwork under exceptional circumstances.

What is unlawful termination?

Section 772 of the Act says that an employer must not terminate an employee’s employment for one or more of the following unlawful reasons:

  • temporary absence from work because of illness or injury (within the meaning of the Fair Work Regulations 2009)
  • trade union membership or participation in trade union activities outside working hours (or during working hours with the employer’s consent)
  • non-membership of a trade union
  • seeking office as, or acting or having acted in the capacity of, an employee representative
  • the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities
  • race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
  • absence from work during maternity leave or other parental leave
  • temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Useful links and resources:

Fairwork: