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Termination guidance · Australia-wide

Letting Someone Go? How to Terminate Employment in Australia

Before you take any action, talk to Daniel. One 15-minute call confirms which pathway applies, what documentation you need, and what not to do next. Call Daniel on 1300 23 44 23.

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Before you act on a termination decision, one 15-minute call with Daniel confirms the correct pathway and the documentation you need. Call 1300 23 44 23 .
You deal with Daniel directly. Every engagement, every call.
Credentials & guarantees
MBA
Cert IV Investigations
Cert IV WHS
AHRI Member
Professionally Insured
Fixed-Fee Pricing
No Lock-In Contracts
★★★★★ 5.0 on Google
The decision in front of you

You Know Something Has to Change

You have an employee who is not working out, whether it is performance issues that have been raised informally but never documented, conduct problems that are affecting the rest of the workplace, or a role that has been made redundant because the business has restructured, downsized, or changed direction. You know something needs to happen, but you are unsure of the termination procedures, the documentation required, and the risks involved in getting it wrong.

How Brookvale HR Solutions helps

Brookvale HR Solutions advises employers across Australia on the correct process for termination of employment under Australian employment law. Daniel Holbrook personally guides every engagement, from initial assessment through to the final separation. The fear of an unfair dismissal claim or adverse action claim often leads to inaction, and inaction almost always makes the situation worse. The risks are manageable when the termination process is handled correctly from the outset.

National Employment Standards

Notice periods 1–4 weeks by service

Minimum notice depends on length of service. Employees aged 45+ with 2+ years of continuous service get one additional week.

Fair Work Act

General protections — uncapped damages

Adverse action claims carry uncapped damages and a reverse onus of proof.

Three pathways

Three Pathways for Ending Employment

Before taking any step toward termination, it is essential to understand which pathway applies to your situation and the reasons for termination of employment in each case. The procedural requirements, the documentation you need, and the risk profile differ significantly depending on whether you need to dismiss an employee for performance, misconduct, or genuine redundancy. Applying the wrong procedures for discipline and dismissal, or skipping steps in the correct process, creates the kind of exposure that leads to Fair Work Commission claims.

The Three Types of Employment Termination

Performance-Based Termination

Performance-based termination applies when an employee is not meeting the inherent requirements of the role. This pathway requires a documented performance management process:

  • Clear expectations communicated to the employee.
  • A reasonable opportunity to improve.
  • Written warnings specifying the consequences of continued underperformance.
  • Evidence the employer provided support where appropriate.

The employer must demonstrate the employee was given a fair and genuine chance to address the concerns before the decision to terminate was made. Without this documentation, the employee may claim they were unfairly dismissed, and the termination is vulnerable to an unfair dismissal claim.

Not sure whether your performance concerns warrant termination yet? A 15-minute call with Daniel can confirm whether you are ready to proceed or whether a formal performance plan is the next step. Call 1300 23 44 23.

Misconduct and Summary Dismissal

Misconduct-based termination applies when an employee has committed a breach of workplace policies or serious misconduct. In cases of serious misconduct, the employer may be able to terminate an employee by way of summary dismissal without notice. Examples of serious misconduct under regulation 1.07 of the Fair Work Regulations include:

  • Theft or fraud.
  • Assault.
  • Intoxication at work to a degree that affects safety.
  • Serious and imminent risk to health and safety.

However, procedural fairness requires that the employee be informed of the specific allegations and given a genuine opportunity to respond before a final decision is made. Failing to provide this opportunity can result in an unlawful termination finding or unfair dismissal claim.

Summary dismissal is where the largest procedural mistakes happen. Before you act, call Daniel on 1300 23 44 23 to walk through the allegation, the evidence, and the show-cause process.

Genuine Redundancy

Redundancy applies when the employer no longer requires the job to be done by anyone, or because of changes in the operational requirements of the business. Genuine redundancy criteria must be met under the Fair Work Act, and the employer must comply with the Fair Work Act consultation obligations. Employees covered by a modern award or enterprise agreement have additional protections. The employer must consult with the employee about the redundancy under the applicable modern award or enterprise agreement, and the role must genuinely no longer exist. Employees are protected from being made redundant as a means of avoiding other obligations. If the employer hires someone into a substantially similar role, the employee may be able to claim unfair dismissal.

Redundancy is only genuine if the consultation, selection criteria, and redeployment obligations are handled correctly. Call Daniel on 1300 23 44 23 before you communicate any redundancy decision.

Talk before you act

If you are unsure of the correct process, a single conversation with Daniel can confirm which pathway applies, what documentation you need, and the steps required to protect your position.

  1. Process Confirmation
    Performance, misconduct, or redundancy: confirm which pathway applies and the procedural requirements.
  2. Documentation Review
    Test the existing documentation trail against Fair Work Commission expectations before action is taken.
  3. Meeting Attendance + Notes
    Daniel attends the termination meeting and captures the contemporaneous notes that protect the record.

Ad-hoc advisory available at $250/hr in 15-minute increments. No retainer, no lock-in contracts.

1300 23 44 23 View pricing options
Statutory framework

Unfair Dismissal and Termination of Employment: What Every Employer Must Know

The Fair Work Act 2009 provides unfair dismissal protections for employees who have completed the minimum employment period: six months for employers with 15 or more employees, or 12 months for small business employers with fewer than 15 employees. When an employee is dismissed, the employer must demonstrate a valid reason for the termination connected to the employee's capacity or conduct. The employer must also allow the employee an opportunity to respond to the concerns and have a support person present, as outlined by the Fair Work Ombudsman.

That gap alone is often enough for a Fair Work Commission member to find the process was unfair.

Notice Periods Under the NES

Minimum notice periods under the National Employment Standards depend on length of service:

  • One week for less than one year of service
  • Two weeks for one to three years
  • Three weeks for three to five years
  • Four weeks for more than five years

Employees aged 45+ with at least two years of continuous service receive one additional week. Awards or enterprise agreements may specify longer periods. Payment in lieu of notice is available; the employer must provide written notice or payment in lieu.

General Protections Claims

General protections under the Fair Work Act prohibit adverse action against an employee for exercising a workplace right, including making a complaint in relation to the employee’s employment or being absent on leave. A general protections dismissal claim carries uncapped damages and a reverse onus of proof: the employer must demonstrate the termination was not motivated by a prohibited reason.

Small Business Fair Dismissal Code

If your business has fewer than 15 employees, the Small Business Fair Dismissal Code applies alongside the unfair dismissal provisions. The minimum employment period before unfair dismissal protections apply is 12 months rather than six. The employer must give a valid reason, a prior warning, and an opportunity to respond. Full compliance with the Code provides a complete defence to an unfair dismissal application.

Financial exposure

The Cost of Unlawful Termination, General Protections Dismissal, and Unfair Dismissal Claims

The financial and operational exposure from a poorly handled termination extends well beyond the original decision. Six categories recur across the matters Daniel sees.

Unfair dismissal — 26-week cap

Up to 26 weeks' pay or, in rare cases, reinstatement, where the dismissal was harsh, unjust, or unreasonable.

General protections — uncapped damages

Where dismissal occurred for a prohibited reason, claims carry uncapped damages and a reverse onus of proof.

Unlawful termination — prohibited reason

Termination for exercising a workplace right, illness absence, or discriminatory reasons exposes the employer to separate proceedings.

Notice period back-pay errors

Incorrect notice calculation creates a back-payment obligation through to the employee's last day of employment.

LSL & entitlements payout errors

Outstanding entitlements including long service leave must be paid correctly at termination. Payroll errors trigger separate compliance action.

Workers compensation psych injury claim

Where the manner of the dismissal causes psychological injury, a workers compensation claim follows independently.

Before you act on a termination decision, talk to Daniel. Ad-hoc advisory at $250/hr in 15-minute increments. No minimum, no lock-in. Call 1300 23 44 23 .

Run the numbers

Check NES minimum entitlements before any conversation

Two free calculators built to the National Employment Standards. Each works on a single screen and updates the figure as you fill in the fields. NES minimums only. Modern Award or Enterprise Agreement entitlements may be higher, and I recommend confirming any figure before you communicate it to the employee.

Tool

Redundancy Pay Calculator

Use the base rate only. Exclude overtime, penalties, and allowances.

Is the employer a small business (fewer than 15 employees)?
Is the employee covered by a Modern Award or Enterprise Agreement?
Is the employee over 45?

The NES adds one week of notice when the employee is over 45 and has at least 2 years of continuous service.

Fill in all six fields above to see your NES minimum estimate.

Tool

Notice Period Calculator

Is the employee over 45?
Is the employee covered by a Modern Award or Enterprise Agreement?
Who is giving notice?
Fill in all the fields above to see your NES minimum notice period.
From assessment to resolution

What Daniel Delivers

Termination Process Guidance for Employers

Daniel advises on the correct termination process for your specific situation, whether the employment ends due to performance, conduct, or restructure. Whether it is a performance-based termination requiring a documented improvement plan, a misconduct matter that may warrant summary dismissal, or a redundancy that must meet genuine redundancy criteria, Daniel reviews the facts, assesses the legal risk, and provides step-by-step guidance at each stage.

  • MBA
  • Cert IV Government Investigations
  • Cert IV WHS
  • AHRI Member
  • Former Military Police Officer

End-to-End Employment Termination Management

For complex matters, Daniel manages the entire termination process from initial assessment through to separation. This includes preparing the notice of termination, scripting the termination meeting, ensuring all entitlements (notice period, annual leave, and redundancy pay) are calculated correctly, and managing the post-termination obligations. The process of terminating employment requires precision at every step. Daniel has navigated termination processes across dozens of industries. You deal directly with a senior professional who has managed these situations many times before, not a junior consultant working from a procedure manual. Learn more about Daniel's experience and qualifications on the About page.

Why Early Intervention Matters

Ongoing support between termination events can stop matters escalating in the first place. The Employee Management service covers performance management planning, disciplinary processes, and structured exit conversations as a single line of work rather than one-off crises. Employers who have this support in place rarely end up in contested dismissals.

Client review

What clients say about working with Daniel

★★★★★ 5.0
Verified Google review
“We recently worked with Brookvale HR Solutions to conduct a full HR audit, implement a new HR and safety policy suite, and resolve a difficult employee performance issue. Dan made the whole process straightforward, gave very practical advice, and ensured we were compliant at every step. We're now much clearer and more confident in how we manage our team, and we feel our HR and safety foundations are in a much stronger position. We will continue working with Dan and the team for all our HR needs and highly recommend them to any business needing HR support.”
L
Linton Chataway
Google Review
FAQ

Frequently Asked Questions About Employee Termination in Australia

Common questions on summary dismissal, notice periods, unfair dismissal, and engaging Daniel before you act.

Still have a question?
Call Daniel on 1300 23 44 23
Can I Fire an Employee Without Warning in Australia?

Summary dismissal without warning is only available where the employee has committed serious misconduct, such as:

  • Theft or fraud.
  • Assault.
  • Intoxication at work to a degree that affects safety.
  • Conduct that poses a serious and imminent risk to health and safety.

In all other cases, the employer must provide the employee with a valid reason, a prior warning, and a genuine opportunity to respond before the decision to terminate is made. Dismissing an employee without following this process exposes the employer to an unfair dismissal claim, even where the underlying reason for termination is legitimate.

What Is the Minimum Notice Period for Termination of Employment?

Under the National Employment Standards, the minimum notice period depends on the employee's length of service:

  • One week for less than one year of service.
  • Two weeks for one to three years.
  • Three weeks for three to five years.
  • Four weeks for five years or more.

Employees aged 45 or over with at least two years of continuous service are entitled to one additional week of notice on top of the applicable minimum above. The employment contract, modern award, or enterprise agreement may require a longer notice period. The employer may choose to provide payment in lieu of notice rather than requiring the employee to work the notice period.

What Is the Difference Between Unfair Dismissal and Unlawful Termination?

Unfair dismissal applies where the termination was harsh, unjust, or unreasonable, and is assessed by the Fair Work Commission. Compensation is capped at 26 weeks' pay. Unlawful termination applies where the employee was dismissed for a prohibited reason, such as exercising a workplace right, being absent due to illness, or for discriminatory reasons. Unlawful termination and general protections claims carry uncapped damages and a reverse onus of proof. Both types of claim can arise from the same termination if the process and the reason are both deficient.

Do I Need an HR Consultant to Terminate an Employee?

There is no legal requirement to engage an HR consultant, but the procedural requirements for a lawful termination are specific and the consequences of getting them wrong are significant. Many employers handle the decision correctly but fail on process: insufficient documentation, missing warnings, or an inadequate opportunity to respond. An experienced HR consultant reviews the facts, confirms the correct pathway, and ensures every procedural step is completed before the termination occurs. For many employers, this guidance is completed in a single consultation at ad hoc rates.

What Happens When an Employee Is Dismissed and They Lodge an Unfair Dismissal Claim?

The employee must lodge the application with the Fair Work Commission within 21 days of the dismissal taking effect. The Commission will first attempt conciliation between the parties. If conciliation fails, the matter proceeds to a hearing where the employer must demonstrate a valid reason for the termination and that a fair process was followed. If the employer cannot demonstrate both, the Commission may order compensation of up to 26 weeks' pay or, in rare cases, reinstatement. Employers whose processes are well documented and procedurally compliant are in a significantly stronger position to defend against claims.

What else to consider

What Else to Consider

Active complaint

Received a Complaint

If the employee you are considering terminating has lodged a complaint, the termination carries additional legal risk under general protections provisions. The complaint must be handled separately before any termination decision is finalised.

View Received a Complaint
Ongoing oversight

Ongoing HR Support

If your business regularly deals with performance management, disciplinary processes, or employee exits, ongoing HR support ensures you have expert guidance available when these situations arise.

View Ongoing HR Support
Prevention

Employee Management

Performance management planning, disciplinary processes, and structured exit conversations, delivered as a single line of work. Many terminations can be avoided entirely with structured employee management support in place earlier in the relationship.

View Employee Management
Next step

Before You Terminate, Talk to Daniel. 15 Minutes, No Obligation.

One conversation with Daniel could save you a Fair Work Commission application. Call 1300 23 44 23 or book a free 30-minute strategy call via Calendly.

Book a 30-minute strategy call Or call Daniel on 1300 23 44 23