Please select your state

We will show you information specific to your state.

Home | Employment & Industrial Relations | Termination of Employment

Types of Termination

Our specialist employment lawyers can provide information on a wide variety of potential remedies and advice as to which course of action is most appropriate for each individual. We understand that not two clients are the same and many claims are subject to strict time limits, so it is important to contact one of our offices promptly when your employment is terminated. If you have been made redundant by your employer, but have not received any payment you should contact us for some advice.

A claim for unfair dismissal must be lodged within 21 days of the date of termination therefore you should seek legal advice quickly.

We can assist with any of the following employment termination outcomes:

  • Unfair Dismissal
  • Adverse Action
  • Breach of Contract
  • Restraint of Trade
  • Redundancy
  • Underpayment of Wages or Contractual Entitlements

To read about our fee policy in this area visit Our Fee policy.

FAQ

Am I protected from unfair dismissal?

Am I protected from unfair dismissal?

If you have had more than six months’ service with an employer and you earn less than the current high income threshold of $138,900 per annum then you are protected from unfair dismissal.

What is constructive dismissal?

What is constructive dismissal?

You may still have rights to bring a claim for unfair dismissal even if you resigned. This arises where a person, because of the conduct of their employer, is left with no other choice but to resign from their employment. This is called constructive dismissal. The most common example of constructive dismissal occurs where a person is told that unless they resign immediately, their employment will be terminated.

What happens after I lodge an unfair dismissal claim?

What happens after I lodge an unfair dismissal claim?

After a claim for unfair dismissal is commenced (be it in NSW or Fair Work Australia) it will be referred for a conciliation conference. The aim of that conference is to resolve the matter without formal litigation, and without the need to expend substantial legal costs. Most matters resolve at conciliation.

If claims do not settle at the conciliation conference a timetable will be set for the matter to proceed to hearing.

What compensation is available?

What compensation is available?

Under both the Fair Work Act and the Industrial Relations Act, the maximum that can be awarded by way of compensation for unfair dismissal is 26 weeks pay. Reinstatement can also be ordered although, in practice, this seldom happens.

What is an adverse action claim?

What is an adverse action claim?

If you were terminated from your employment or you were demoted or other adverse action has been taken against you for a prohibited reason such as due to a disability, your sex or race or because you tried to exercise a workplace right then you may be able to make an adverse action claim.

Adverse action (or general protections) claims allow employees to bring a claim in the Fair Work Commission where their employer has treated them less favourably because they have (or have tried to) exercise a workplace right.

The definition of a workplace right is quite broad and includes rights such as the right to make an enquiry, complaint or pursue an entitlement under a workplace law or instrument, or to participate in proceedings regarding a workplace law.

An adverse action claim can also be brought were an employee has been treated less favourably on discriminatory grounds.

Adverse action claims are commenced in Fair Work Australia. They are then referred for a compulsory conference which will aim to negotiate a resolution. If the conference is unsuccessful, proceedings may be commenced in the Federal Magistrates Court.

What is a contract?

What is a contract?

A contract of employment is a binding agreement between an Employer and an Employee, which includes the terms and conditions that govern the employment relationship.

A contract can be written or verbal.

A breach of contract can occur where an Employer does meet its obligations under the contract for example.

  • wages or other entitlements under the contract are not paid, or not paid in full;
  • entitlements to bonuses, or commissions are not calculated or considered;

What remedies are available for a breach of contract?

What remedies are available for a breach of contract?

The remedies for breach of a contract include an injunction to prevent further breaches and the payment of damages.

What is a redundancy?

What is a redundancy?

Redundancy occurs where your employer no longer requires your job to be done by anyone due to changes in the operational requirements of the business. This might be caused by a downturn in your industry, a restructuring of the company or relocation interstate. Your job then becomes redundant.

Your employer should consult with you before making your position redundant.

What if the redundancy isn’t genuine?

What if the redundancy isn’t genuine?

If you believe that you have been made redundant by your employer and the reason was not genuine, for example where your job is being performed by another employee promoted into your position, or your Employer has employed a new employee to perform your position, you should contact us for legal advice.

A redundancy is also not genuine where it would have been reasonable in the circumstances to redeploy you to another comparable position within the organisation.

If your redundancy is not genuine you may also be eligible to bring an unfair dismissal claim against your Employer. This must be done within 21 days.

Am I entitled to a redundancy payment?

Am I entitled to a redundancy payment?

If you are employed by a business that employs more than fifteen (15) employees and you have been employed for at least one (1) year, then you are entitled to a redundancy payment.

The amount of redundancy you will receive would depend on your years of service with your Employer and your entitlements set out under the Award, Agreement or Contract that governs your employment. There is a minimum redundancy entitlement set out at s.119 of the Fair Work Act 2009.

There is also the requirement for the employer to give you notice or a payment in lieu of notice. This payment will also depend on your years of service with your employer and any contractual entitlements.  There is a minimum notice provision set out at s.117 of the Fair Work Act 2009.

Depending on the seniority of your position and your length of service with your employer, we can assess what notice period is reasonable in your circumstances.

What is restraint of trade?

What is restraint of trade?

Many contracts of employment and other work agreements now contain terms that seek to control the behaviour of the worker after they have left the employment (or partnership). These provisions are generally known as restraints of trade.

Restraint terms in contracts often prevent a departing worker setting up in competition or working for competitors. Restraint terms are important to businesses that heavily rely on client relationships and where employers are trying to protect their legitimate business interests.

In NSW, the Restraint of Trade Act 1974 provides that the Courts will only enforce clauses that are reasonable.

Matters which the court will take into account in deciding whether a restraint of trade clause is reasonable include:

  • Time period: the restraint must only be for a period of time which is necessary to protect the business interest;
  • Geographical area: the area covered by the restraint must be reasonable, and not prevent the employee from working altogether;
  • The restraint must protect a legitimate interest of the employer, for example its customer lists or goodwill.

Employment Law Enquiry

Latest News and Blog

The ugly side of beauty

Sally Gleeson on ABC’s 4 Corners highlighting the dangers of cosmetic surgeries.Read More

Employer fails to investigate bullying

Consequences of employer not investigating complaints.Read More