Under the Fair Work Act 2009 (Cth), employers must follow a fair and lawful process when terminating employment. In particular, employers must establish a valid reason for dismissal and apply procedural fairness. Otherwise, the business may face unfair dismissal or adverse action claims.

Under Australian employment law, termination must relate to the employee’s capacity, conduct, or the operational requirements of the business.

Commonly, valid reasons include:

• Poor performance
• Misconduct
• Genuine redundancy
  
  

However, if an employer cannot establish a valid reason, the dismissal may be unfair.

Procedural fairness plays a central role in any lawful termination process. In essence, employers must give employees a genuine opportunity to respond before making a dismissal decision.

At a minimum, employers must:

• Explain the reason for possible termination
• Allow the employee to respond
• Consider the response before deciding

Consequently, a failure to apply procedural fairness can make an otherwise valid dismissal unfair.

Generally, yes. In cases involving poor performance or minor misconduct, employers should issue warnings before termination.

Specifically, employers should:

• Issue clear written warnings
• Explain what improvement is required
• Allow reasonable time for improvement

Importantly, multiple warnings strengthen procedural fairness and significantly reduce legal risk.

A show cause notice asks the employee to explain why the employer should not terminate their employment.

Importantly, it serves two key purposes:

• Demonstrates procedural fairness
• Gives the employee a final opportunity to respond

For this reason, employers often use show cause notices in serious misconduct or ongoing performance matters.

Yes. Employees have the right to bring a support person to disciplinary or show cause meetings.

As a result, allowing a support person promotes fairness and transparency. Conversely, refusing this right may count against the employer in an unfair dismissal claim.

Yes. Under the Fair Work Act, employers must provide written notice of termination.

Accordingly, the notice should clearly state:

• The final date of employment
• The reason for termination

If not, the employer may breach the Act and increase legal exposure.

Notice periods depend on the employee’s length of service and age.

Under the Fair Work Act, notice ranges from:

• 1 week (less than 1 year of service)
• Up to 5 weeks (longer service and age over 45)

Modern awards and employment contracts may require longer notice.

Final pay must include all outstanding entitlements, such as:

• Unpaid wages
• Accrued annual leave
• Long service leave (if applicable)
• Any other contractual entitlements

Late or incomplete final pay can result in penalties and legal claims.

Employees have 21 days from the date of dismissal to lodge an unfair dismissal or adverse action claim.

The Fair Work Commission only grants extensions in exceptional circumstances.

A redundancy is genuine when:

• The employer no longer requires the role to be performed
• No one else performs the same role
• The employer consults with the employee and redeployment options are properly considered

If these steps do not occur, the redundancy may be challenged.

Summary dismissal allows immediate termination without notice for serious misconduct, such as:

• Theft
• Fraud
• Violence
• Serious safety breaches

Even in summary dismissal cases, employers should still apply procedural fairness where possible.