Dismissal
When an employer dismisses an employee, they’re terminating the employee’s employment.
Learn more about the rules and entitlements that an employer must follow when dismissing an employee.
On this page:
- Types of dismissal
- Serious misconduct
- Giving an employee notice of termination
- Minimum notice period
- Longer notice periods
- Working during the notice period
- Leave and public holidays during a notice period
- Video: Notice of termination
- Dismissal disputes
- Tools and resources
- Related information
Our information is a guide
The information on this page is general guidance only.
We can only give information and advice on minimum rights and obligations.
If you need tailored help during the dismissal process, you should seek independent advice. Find out how at Legal help.
Types of dismissal
Dismissal is when an employer ends an employee’s employment. This can also be known as termination. It can include constructive dismissalWhere an employee quits but was forced to do so because of the conduct of their employer. .
A dismissal doesn’t happen when an employee:
- is demoted without a significant reduction in duties or pay and remains employed
- was employed under a contract for a specified period, task or season
- had a training arrangement that ended when it said it would end.
Redundancy
Redundancy happens when an employer:
- doesn't need an employee’s job to be done by anyone, or
- becomes insolvent or bankrupt.
For more information, visit Redundancy.
Serious misconduct
Serious misconduct is when an employee deliberately behaves in a way that is inconsistent with continuing their employment. This includes conduct causing serious and imminent risk to the health or safety of another person, reputation or profitability of the employer’s business.
Examples of serious misconduct include:
- engaging in theft, fraud, assault or sexual harassment during the employee’s employment
- being intoxicated at work
- refusing to follow a lawful and reasonable instruction that is part of the employee’s job.
When an employee is terminated for serious misconduct, the employer isn’t required to give them notice of the termination. For more information, go to Who doesn’t get notice.
Tip: Ending employment templates
We have termination of employment templates available, access these at Templates.
Giving an employee notice of termination
When an employer wants to end an employee’s employment, they may be required to give the employee notice of termination under the National Employment Standard (NES).
This includes:
- written confirmation of their last day of employment, and
- a notice period which the employee can work or be paid instead of working (exceptions apply).
Not all employees are required to be given notice under the NES. Learn more at Who doesn't get notice.
How to give an employee notice
An employer must give an employee written notice if the:
- employer wants to end the employee’s employment
- employee is entitled to notice of termination under the NES.
An employer can give notice to the employee by:
- delivering it in person
- leaving it at the employee’s last known address, or
- sending it by pre-paid post to the employee’s last known address.
The employer can send the notice electronically if the employee agrees and can easily access it.
Written notice for casual employment
Certain employees, including casuals, aren’t entitled to written notice of termination under the NES. However, it’s best practice for all employees and employers to confirm in writing when they’re ending the employment relationship.
Minimum notice period
An employee must be given the minimum notice period that applies. It can be worked by an employee or the employer can make a payment in lieu of notice.
The notice period:
- starts the day after the employer tells the employee that they’re ending their employment
- ends on the last day of employment.
In most cases, an employee gets the minimum notice period under the NES when their employer dismisses them. It’s based on their length of continuous service on the day they’re given notice.
| Period of continuous service | Minimum notice period |
|---|---|
| 1 year or less | 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 |
| More than 5 years | 4 weeks |
Under the NES, employees over 45 years old get an extra week of notice if they have at least 2 years of continuous service with their employer.
An award, agreement or employment contract may require a longer minimum notice period than the NES.
An employment contract can't provide for less than the NES, the relevant award or agreement. For more information, go to Employment contracts.
Payment in lieu of notice
Payment in lieu of notice happens when:
- an employee’s employment ends on the day notice is given, and
- the employee gets paid what they would have been paid if they worked out the notice period.
When this happens, the amount paid to the employee must equal the full amount the employee would have been paid if they had worked until the end of their notice period.
This includes:
- incentive-based payments and bonuses
- loadings
- monetary allowances
- overtime
- penalty rates
- any other separately identifiable amounts.
If the employer pays out the notice period, the employee's employment ends on their last working day and they stop accruing leave and other entitlements.
For more information, visit our Library article Accumulating leave during a notice period.
Notice during probation periods
Employees are entitled to a notice period even if their employment ends during their probation period. They must be allowed to work their notice period or be paid out in lieu based on their length of service.
For more information, go to Probation.
Continuous service
The minimum notice period an employer must give is based on the employee's continuous service with them.
For notice under the NES, continuous service:
- is the length of time an employee is employed by the employer
- includes unpaid leave, for example unpaid parental leave
- doesn’t include any period of unauthorised absence.
Time spent working as a casual usually won’t count towards continuous service for notice.
For more information, visit our Library articles:
Example: Counting unpaid parental leave periods when giving notice of termination
Joan is 35 years old and has been employed for 5 years and 3 months. During this time, she has taken 12 months of unpaid parental leave.
Joan's position is being made redundant. Her manager, Archie, needs to work out how much notice to give Joan.
Joan's award refers to the NES for notice of termination.
Joan's continuous service under the NES includes her 12 months of unpaid parental leave.
Joan is entitled to 4 weeks’ notice of termination.
Longer notice periods
An award, enterprise agreement or employment contract can set out a longer minimum notice period.
If an employer provides more notice than required under the NES or a relevant award, agreement or contract, the employee must only work out the minimum notice period. They can work out the extra notice if they want to.
If the employee only works the minimum notice period, the employer doesn't have to pay the extra notice period.
Awards
If an employee is covered by an award, select the industry from the list below to find out whether there are other minimum notice rules in their award.
Tip: Use our Notice and Redundancy Calculator
To calculate notice periods and redundancy pay under an award or the NES, use our Notice and Redundancy Calculator.
To access an award in more detail, visit List of awards.
Agreements
An enterprise agreement can include different rules for notice. The agreement should be checked for further information. To find an agreement, go to the Fair Work Commission website.
Working during the notice period
Employers can choose if the employee works during their notice period.
An employer can:
- let the employee work their notice period
- end their employment early and pay out the notice period to them (also known as payment in lieu of notice), or
- do a combination of the two.
An employee will continue to accrue leave for any time worked during the notice period.
Example: Employee not working the full notice period
Gunter is a permanent full-time employee who has been working at a steel mill for 5 months.
They’re still within their 6 month probation period.
Gunter’s manager calls Gunter into a meeting and tells them that they have made the decision to end their employment.
The manager explains to Gunter that they are entitled to one week of notice under the NES because they have less than one year of continuous service.
Gunter is given notice of termination on Tuesday. This means Wednesday is the first day of their notice period.
Gunter is told that they will only need to work 3 days of the notice period and that their employment will end on the Friday. Gunter will then be paid out the 2 days remaining of the notice period.
Gunter’s final pay includes:
- payment for the hours they’ve worked
- 2 days of payment in lieu of notice
- the unused annual leave they’ve accumulated up until Friday.
Ending the notice period early
If an employee has been dismissed and wants to leave during the notice period as required by the NES, the employer can agree to reduce the employee's notice period.
Where the employer and employee can’t agree, the employee can choose to resign and give their own minimum notice. Any time the employee has already worked doesn't count towards the employees’ minimum notice period.
The normal rules for the employee giving notice will apply. For information about how much notice an employee needs to give, visit Resignation.
Leave and public holidays during a notice period
The rules for taking leave in a notice period are the same as at all other times during employment.
An employee can take annual leave during a notice period if the employer agrees to the leave. An employer can't force an employee to take leave as part of the notice period.
An employee can take sick or carer’s leave during a notice period if they give:
- notice of the leave as soon as possible
- evidence, if the employer asks for it, such as a medical certificate.
Leave and public holidays that fall during a notice period do not extend the notice period.
For more information, visit our Library article Ending employment during leave.
Video: Notice of termination
Watch our short video on notice to learn about:
- which employees get written notice or payment in lieu of notice
- how much notice an employer needs to give and how they should give it
- what’s included in final pay.
Dismissal disputes
Eligible employees can apply to the Fair Work Commission (the Commission) if they have a dispute about their dismissal. The Commission is the national workplace relations tribunal.
This includes an employee:
- that thinks the dismissal is unfair or is a breach of the general protections in the Fair Work Act
- dismissed for serious misconduct and the employee can show that, in the circumstances, their conduct didn’t make employment during the notice period unreasonable.
For more information, go to Help with termination.
Source reference for page: Fair Work Act 2009 sections 18, 22, 117, 123, 386 and Fair Work Regulations 2009 regulation 1.07
Tools and resources
- Notice and Redundancy Calculator
- Termination of employment letter templates
- Small Business Fair Dismissal Code Small Business Fair Dismissal Code
- Library
