Fair Work Centre — For Employers
The way a termination is handled — not just the reason for it — is what determines whether it holds up. Get employer-side advice on process, documentation and timing before you make the call.
The Problem
Termination disputes are assessed under the Fair Work Act 2009, with the Fair Work Commission focused heavily on whether a fair process was followed — not just whether the underlying reason was valid. Getting the process right is often what determines the outcome.
Unless it’s serious misconduct, the Fair Work Commission expects a clear warning and a genuine opportunity to improve before dismissal — and expects it in writing, not just recalled from memory.
Notice periods under the NES scale with length of service, and awards or contracts can require more. Getting this wrong — or paying in lieu incorrectly — creates immediate underpayment exposure.
Dismissing without notice for “serious misconduct” is only lawful in genuinely serious cases. Getting this call wrong turns a clean termination into an unfair dismissal claim.
What’s said in the termination meeting itself is often used as evidence. An unscripted, emotional conversation can undo months of otherwise solid documentation.
How We Help
Fair Work Centre helps Australian employers plan and execute terminations — performance, conduct or otherwise — in a way that’s defensible if it’s ever challenged.
How It Works
Call 1300 161 828 or book a free initial advice call before you say anything to the employee.
We review your grounds, documentation and proposed process end-to-end.
Get compliant documentation and a script for a clean, defensible termination.
A short advice call now can prevent a costly unfair dismissal claim later.
Membership
Common Questions
Generally no, except in cases of serious misconduct such as theft, violence or serious safety breaches. For performance or ordinary conduct issues, the Fair Work Commission expects at least one clear, documented warning and a genuine opportunity to improve before termination.
Under the National Employment Standards, notice ranges from 1 to 4 weeks based on length of service, plus an extra week if the employee is over 45 with at least 2 years’ service. Awards, contracts or agreements may specify longer periods, so always check the highest applicable entitlement.
Summary dismissal means ending employment immediately, without notice, due to serious misconduct. It’s a high bar — the conduct must be serious enough that continuing the employment relationship even briefly would be unreasonable. Getting this wrong exposes you to both an unfair dismissal claim and a notice pay claim.
An employee generally has 21 days from the date of dismissal to lodge an unfair dismissal application with the Fair Work Commission. Extensions are only granted in exceptional circumstances, so respond to any post-termination correspondence promptly.
Unfair dismissal protection is based on the minimum employment period — 6 months for most employers, 12 months for small businesses (fewer than 15 employees) — not whether the employee is technically “on probation.” An employee under probation but past the minimum period can still bring a claim.
Keep it brief, factual and consistent with your documented reasons — avoid over-explaining, apologising in a way that implies fault, or departing from the process you’ve followed. What’s said in this meeting is frequently relied on as evidence if the termination is later challenged.
No. Fair Work Centre is an independent private advisory service for employers. We are not associated with or authorised by the Fair Work Ombudsman, the Fair Work Commission, or any government authority.
Fair Work Centre is an independent private organisation providing advisory services to employers only. It is not associated with or authorised by the Fair Work Ombudsman, the Fair Work Commission, or any government authority.
Speak to an Employment Lawyer at Fair Work Centre
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