Dismissal Without Warning

Notice and payment in lieu

Under s 117 of the Fair Work Act 2009 (Cth), an employer must generally give written notice stating the termination date and either let the employee work the minimum notice period or pay the employee instead.

An employee aged over 45 who has completed at least two years' service receives one additional week. An award, enterprise agreement or contract may require more than the NES minimum.

Who may not receive NES notice?

Section 123 contains exceptions. NES notice generally does not apply to casual employees, some employees engaged for a specified period, task or season, and employees dismissed because of serious misconduct. There are also specialised exceptions for certain training and daily-hire or weekly-hire arrangements.

A label is not always conclusive. For example, the legal character of a fixed-term arrangement and the reason it ended can matter. Even where NES notice does not apply, an award, agreement, contract or other law should still be checked.

What is serious misconduct?

The Fair Work Regulations describe serious misconduct as deliberate behaviour inconsistent with continuing employment or conduct causing serious and imminent risk to health or safety, or to the reputation, viability or profitability of the employer's business. Examples can include theft, fraud, assault, sexual harassment, intoxication at work in relevant circumstances, or refusal to carry out a lawful and reasonable instruction.

The label “serious misconduct” is not enough. The actual conduct and evidence matter. The Fair Work Ombudsman notes that an employee dismissed on this basis can still dispute whether, in the circumstances, continuing employment through the notice period was unreasonable.

Outstanding entitlements—such as pay for hours already worked and unused annual leave—can remain payable even where notice is not.

Does an employer need earlier warnings?

There is no universal rule requiring three warnings. For performance issues, a fair process commonly involves clear expectations, telling the employee what is wrong, giving a reasonable opportunity to improve, and warning that employment is at risk. Serious misconduct may justify dismissal without earlier warnings.

In an unfair-dismissal case, the Commission considers matters including whether there was a valid reason, whether the employee was told that reason, whether they had an opportunity to respond, unreasonable refusal of a support person, warnings about unsatisfactory performance, the employer's size and HR expertise, and any other relevant matter.

Who can apply for unfair dismissal?

Eligibility is not automatic. Generally, an employee must be covered by the national workplace system, have completed at least six months' employment—or 12 months for a small-business employer with fewer than 15 employees—and satisfy the earnings, award or enterprise-agreement requirements. Regular and systematic casual service may count where the statutory test is met.

A dismissal is not unfair if it is a genuine redundancy. A dismissal by a small-business employer may also be protected where it complies with the Small Business Fair Dismissal Code.

The 21-day deadline

An unfair-dismissal application must generally be lodged with the Fair Work Commission within 21 days after the dismissal takes effect. The period starts the following day and includes weekends and public holidays, subject to the Commission's filing rules. Extensions are available only in exceptional circumstances.

A general-protections dismissal application—where the alleged reason is prohibited, such as exercising a workplace right—also generally has a 21-day deadline. These are different legal claims. A worker should promptly identify the correct pathway rather than wait for an internal complaint to finish.

What to do immediately

1. Ask for written confirmation of the termination date and reasons.
2. Keep the contract, award or agreement, policies, rosters, payslips, warnings, emails and meeting notes.
3. Check final pay, unused leave, notice or payment in lieu and any redundancy entitlement.
4. Write a factual chronology and preserve relevant messages.
5. Check Fair Work Commission eligibility and calculate the 21-day deadline immediately.
6. Contact a union, employment lawyer or community legal service promptly if unsure.