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New workplace laws came into effect on July 1st 2009. This site will be updated shortly to reflect the new Fair Work laws.

From 27th March 2006 to June 30th 2009, only employees employed by organisations which have over 100 employees were entitled to lodge a claim for unfair dismissal. This arose from the former Commonwealth government's "Workchoices" legislation.

From 1st July 2009 employees are entitled to lodge an application re alleged unfair dismissal, provided the employee has worked for the employer for a period of 6 or 12 months, depending on the size of the employer's workforce.

An employee in a business with 15 or more employees must have at least 6 months service before gaining acces to the unfair dismissal provisions.
An employee in a small busines with less than 15 employees must wait 12 months before gaining such access.

Some high income employees are excluded (earning over $100,000, indexed).

Employees from all sized organisations are entitled to lodge a claim for unlawful termination, a much narrower concept. See section below on unlawful termination.

Termination/dismissal is a very complex area.

The following is a summary only.


1. Unfair dismissal

Application can only be made by a dismissed employee if

  • the employer employs over 100 employees and
  • the dismissed employee has been employed for more than six months qualifying period and
  • the employee earns less than $94,900 (adjusted periodically).

An employer may terminate an employee's employment if there is a

  • valid reason
  • and if a
  • proper procedure
  • is followed.

A valid reason means a reason

  • related to the worker's conduct or capacity or
  • an operational requirement of the business.

A proper procedure means that the employer has used fair criteria in selecting who is to be terminated, and

  • where employee conduct is the reason for termination, has notified the employee of the reason and given the employee an opportunity to respond to any reason related to capacity or conduct;
  • where unsatisfactory performance is the reason, the employee has been given clear warning, training (if appropriate) and an opportunity to improve performance.

An operational requirement could include, for example, a downturn in work, or a decision to close a branch office, etc. The exact meaning of the term has been considered by the Industrial Relations Commission. It found that the term gives employers quite wide discretion regarding termination of an employee. For example, there is no obligation to redeploy a person, even if they have suitable skills, etc.  The "Workchoices" legislation says

"Genuine operational reasons include economic, technological, structural or similar matters relating to the employer’s business".

2. Unlawful termination

Applies regardless of the number of employees employed by an organisation.

An employer must not terminate an employee for the following reasons, or reasons which include any of:

  • temporary absence due to illness or injury or parental leave
  • union membership or non-membership, participating in union activities
  • seeking office as a representative of employees or as a union official
  • filing a complaint or being involved in a case against an employer
  • race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
  • refusing to negotiate, sign, extend or vary an Australian Workplace Agreement, or because the agreement does not meet the Fairness Test introduced on 7/5/2007 (see Agreements)
  • absence on maternity or parental leave
  • temporary absence while carrying out voluntary emergency management activity.

Assistance with legal costs to a maximum of $4,000 may be available to persons who believe they have been unlawfully terminated, provided the employee's income is less than $47,745 pa (adjusted every two years).

A claim in relation to both alleged unfair dismissal or unlawful termination must be filed within 21 days of termination.


Notice must be given if the employer terminates an employee. The minimum length of notice depends on how long the employment has lasted.

length of employment* period of notice/pay in lieu*
Not more than 1 year At least 1 week
1 year up to 3 years At least 2 weeks
3 years up to 5 years At least 3 weeks
More than 5 years At least 4 weeks
(If employee is over 45 and employed for more than 2 years) (Add one week in addition to the above amounts)

The employer may choose to pay in lieu of notice. The payment must include all allowances, etc, that would have been received for ordinary hours worked. (In some circumstances an employee may also be entitled to a redundancy payment - see Redundancy.)

An employee under most Awards must usually give notice equal to the above amount (but without the extra week for those over 45). If an employee doesn't give the required notice, the employer may withhold money from any pay owing to the employee.


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