Employer obligations when dismissing an employee in Australia

In Australia an employer can end employment, but it must do so lawfully and fairly. That means giving the right notice (or pay instead), paying all entitlements, and, for most employees, having a valid reason and a fair process: telling the person what the concern is and letting them respond before the decision is made. If your employer skipped those steps, you may have grounds for an unfair dismissal claim. If you are the employer, they are the steps to get right.

This guide covers both sides. It sets out what the law expects, how the Fair Work Commission (FWC) looks at procedural fairness and warnings, where small businesses differ, and what to do if you think your dismissal fell short.

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TL;DR

Every employer must give the minimum notice of termination, or pay in lieu, unless the conduct is serious enough to justify summary dismissal.
For employees protected from unfair dismissal, the employer needs a valid reason related to capacity or conduct, must tell the employee the reason, and must give a genuine chance to respond before deciding.
Procedural fairness is judged on substance. A warning or meeting held after the decision is already made carries little weight.
Unfair dismissal applications must be lodged with the FWC within 21 calendar days of the dismissal taking effect, and late applications are accepted only in exceptional circumstances.
Small businesses (fewer than 15 employees) follow the Small Business Fair Dismissal Code, and employees there need 12 months' service rather than 6.

The baseline: notice and entitlements
Who is protected from unfair dismissal
What makes a dismissal harsh, unjust or unreasonable
The valid reason requirement
Procedural fairness: what it requires
Warnings before dismissal
Small businesses: a different code
Perspective: what we see in dismissals that go wrong
If you were dismissed: what to do first
Unfair dismissal or general protections?
What the FWC can order
How we can help with preparation
FAQ
Sources

The baseline: notice and entitlements

Before asking whether a dismissal was fair, there is a more basic question: was it done properly? The Fair Work Ombudsman says an employer must not dismiss an employee unless it has given the minimum notice period or paid the employee instead of working it, or the dismissal is for serious misconduct. This is explained on the Ombudsman's page for people who have lost their job.

The National Employment Standards set the notice scale. The Fair Work Ombudsman's guide to starting a new job notes it runs up to 5 weeks, and that employees on probation are still entitled to notice and the NES. Your award, enterprise agreement or contract may require more, so check them first.

Notice is separate from fairness. An employer can pay every cent of notice and still dismiss someone unfairly. Equally, paying notice does not remove the need for a fair process where the employee is protected from unfair dismissal.

On termination the employer should also pay out final wages, accrued annual leave and any other entitlements. Redundancy pay may apply in a genuine redundancy, depending on the employee's service and the size of the employer.

The baseline: notice and entitlements — overview diagram

Who is protected from unfair dismissal

The fairness obligations below bite hardest when the employee can actually bring an unfair dismissal claim. The Fair Work Ombudsman sets the tests:

Minimum employment period: 6 months for employers with 15 or more employees, 12 months for small business employers.
Coverage: the employee must be covered by a modern award or enterprise agreement, or earn below the high income threshold, currently $190,100 a year according to the FWC.
Casuals: a casual is only eligible if employed on a regular and systematic basis with a reasonable expectation of continuing employment.

If you are unsure whether you qualify, our walkthroughs on unfair dismissal eligibility, the minimum employment period, casual employees and the high income threshold cover each in detail. Probation does not remove protection once the minimum period is served, as we explain in our probation guide.

Employees who fall outside these tests are not left with nothing. They still have notice and entitlements, and may have a general protections claim, covered further down.

What makes a dismissal harsh, unjust or unreasonable

Under the Fair Work Act, a dismissal is unfair if the FWC is satisfied that it was harsh, unjust or unreasonable, and (for small businesses) was not consistent with the Small Business Fair Dismissal Code, and was not a genuine redundancy. The FWC overview sets out the framework, and section 387 lists what the Commission must consider:

whether there was a valid reason related to the employee's capacity or conduct;
whether the employee was notified of that reason;
whether the employee was given an opportunity to respond;
whether the employer unreasonably refused a support person at any discussion about the dismissal;
for unsatisfactory performance, whether the employee was warned beforehand;
the effect of the size of the employer's enterprise on procedures followed;
the effect of the absence of dedicated human resource management specialists or expertise;
any other matters the Commission considers relevant.

No single factor decides the case. The Commission weighs them together under what it calls a fair go all round, balancing the employer's need to run the business against the employee's need for job security and a fair process.

The valid reason requirement

The reason must be sound, defensible and based on the facts, and it must relate to capacity (can the person do the job, are they fit to do it) or conduct (what they did or did not do). A reason the employer believes but cannot back up with evidence is a weak foundation.

Common valid reasons include:

Poor performance, where the standard was clear and the person fell short after support.
Misconduct, such as breaching a lawful and reasonable policy or direction.
Serious misconduct, such as theft, fraud or violence, which can justify dismissal without notice.
Genuine redundancy, where the job is no longer needed by anyone, the employer met any consultation obligations in the award or agreement, and redeployment was not reasonable.
Inability to perform the inherent requirements of the role, for example a prolonged incapacity, handled carefully and with medical evidence.

Illness needs particular care. Being on sick leave does not make someone untouchable, but dismissing someone because of a temporary absence or disability can also raise general protections and discrimination issues.

Procedural fairness: what it requires

Procedural fairness is the part employers most often get wrong, and the part readers search for most. The FWC's page on the opportunity to respond says an employee must be notified of the reason for termination and given an opportunity to respond to it before the decision to terminate is made. It also says this needs no particular formality and is applied in a common sense way.

In practice, a fair process usually looks like this:

Raise the specific concern. Tell the employee what the issue is, with enough detail (dates, incidents, policies) that they can answer it. A vague "we need to talk about your attitude" is not enough.
Allow time to prepare. The employee should not be ambushed in a meeting and dismissed within the hour.
Offer a support person. Section 387 asks whether an employer unreasonably refused one at a dismissal-related discussion. The support person is there for support, not as a representative who argues the case.
Listen to the response and consider it. Check any explanation that can be checked. If new facts emerge, they must be weighed.
Decide, then communicate clearly. Confirm the outcome and reason in writing, with notice and entitlements.

Substance beats paperwork

The Commission looks at what really happened. Where the employee already knew the precise nature of the concern and had a full chance to answer it, that can satisfy the requirement even without a formal letter. The reverse also holds: an employer that holds a "consultation" or issues a warning after a firm decision to terminate has already been made is likely to be found procedurally unfair, however neat its file notes look.

There is one more wrinkle. The FWC page explains the Commission only considers the opportunity to respond if it first finds there was a valid reason for dismissal. That is why a fair process cannot rescue a dismissal with no sound reason behind it.

Warnings before dismissal

The warning factor applies to unsatisfactory performance. If an employee is dismissed for it, the Commission asks whether they were warned that their job was at risk and given a chance to improve.

A warning that counts usually:

identifies what is wrong and the standard expected;
says plainly that continued failure could lead to dismissal;
gives a realistic period and support to improve;
is followed up honestly, with the outcome recorded.

Two things are worth knowing. First, warnings are tied to performance. Serious misconduct, such as theft or violence, does not need a string of warnings before an employer can act, though the employee should still hear the allegation and respond. Second, a warning is not the same as a procedural fairness step. An employer might have warned someone months ago and still need to put the final concern to them before deciding.

Situation	Warning expected?	Opportunity to respond expected?
Ongoing poor performance	Yes, usually clear and repeated	Yes
Misconduct (not serious)	Often, depending on the conduct and policies	Yes
Serious misconduct	Not generally	Yes, the allegation should be put
Genuine redundancy	No, but consultation under award or agreement	Consultation per award or agreement

This table is a guide to how the factors usually play out, not a rule. The Commission considers each case on its facts.

Small businesses: a different code

An employer with fewer than 15 employees is a small business employer. Rather than the full section 387 analysis alone, a dismissal is judged against the Small Business Fair Dismissal Code. The Fair Work Ombudsman provides the Code and a checklist to help small business owners follow a fair process.

Small business employees need 12 months of service before they can claim. The size of the business and the absence of HR specialists are also relevant to how much formality the Commission expects. A small cafe is not held to the standard of a large corporation's HR department, but it still has to be honest, give the person a chance to respond, and have a real reason.

If you are a small business owner who has received a claim, the code checklist and your records of what was said and when will matter most.

Perspective: what we see in dismissals that go wrong

We built our service around Australian Fair Work procedure, and the same pattern shows up repeatedly. The reason for dismissal is often defensible. The process is where it falls apart: the employee finds out in the meeting that it is their last day, nobody put the allegations to them, or a warning letter is dated after the decision was made.

For employees, the practical lesson is to start collecting evidence on day one: emails, letters, rosters, performance reviews, notes of meetings. The 21-day deadline is short, and the people who struggle most are those trying to reconstruct events from memory. For employers, the lesson is just as simple: write down the concern, give a real chance to answer it, and keep the record of the conversation.

We also think people are best served by understanding the process before they file. Preparation is not outcome prediction. Nobody can promise a result, but a claim that is organised, on time and grounded in the correct provisions is far easier for a lawyer, union or community legal centre to work with.

— Nicolas

If you were dismissed: what to do first

Note the date the dismissal took effect. The 21 calendar days run from that date. The FWC says on its pre-lodgement page that you can apply even without all the information and send more later.
Get the dismissal in writing if you can, and keep every message about the concern, warnings and meetings.
Check eligibility: service, award or agreement coverage, income, casual status, and whether you actually resigned or were forced out. Our guide to constructive dismissal covers forced resignations.
Choose the right claim. Unfair dismissal asks whether the dismissal was harsh, unjust or unreasonable. A general protections claim asks whether the dismissal breached a workplace right or involved discrimination, and has no minimum employment period.
Lodge on time. Our guide to Form F2 walks through the unfair dismissal application.

Late applications

The FWC treats the 21-day limit strictly. Late applications are generally rejected unless the applicant proves exceptional circumstances, which requires a documented and compelling explanation for the delay, according to the FWC. Do not plan on an extension.

Unfair dismissal or general protections?

These are different pathways, and they are not interchangeable. The FWC notes that a dismissal which breaches the general protections provisions could also be unfair, and a person eligible for either must consider which option offers the best outcome. A general protections claim involving dismissal is made on Form F8, which explains that the provisions protect workplace rights and freedom of association and guard against workplace discrimination.

Unfair dismissal looks at the fairness of the process and reason. General protections looks at why the employer acted: for example, because you made a complaint, took sick leave or exercised another workplace right. Which suits you depends on your facts, so see our general protections checklist and, if it is complicated, speak to a lawyer, union or community legal centre.

What the FWC can order

If the Commission finds a dismissal was unfair, it can order reinstatement or, where that is not appropriate, compensation. Our guide to unfair dismissal remedies and the $95,050 cap explains how compensation works. Most matters first go to conciliation, so it helps to have your story and documents organised before then.

How we can help with preparation

Terminationhelp is an AI-powered preparation tool built only for Australian Fair Work claims. It checks eligibility, helps you organise evidence, generates the Fair Work forms you need and gives you a timeline, so you can file yourself or take a structured packet to a lawyer, union or community legal centre. See how our preparation support works. It is preparation, not legal advice or outcome prediction.

FAQ

Does an employer always need to give a warning before dismissal?

No. A warning is expected mainly where the reason is unsatisfactory performance, so the employee knows the job is at risk and can improve. Serious misconduct can justify dismissal without warnings, though the employee should still be told the allegation and allowed to respond.

What is the minimum an employer must do before dismissing someone?

Give the required notice or pay in lieu, unless the conduct is serious misconduct, and pay all entitlements. For employees protected from unfair dismissal, the employer should also have a valid reason, tell the employee about it and give a genuine chance to respond before deciding.

Can an employer dismiss me without a meeting?

The law does not demand formal meetings, and the FWC says the process is applied in a common sense way. But you must be told the reason and have a real opportunity to answer it before the decision is made. A phone call or written exchange can suffice if it is genuine.

Does procedural fairness apply to small businesses?

Yes, though the Commission considers business size and the lack of HR expertise when assessing the procedure. Small businesses are assessed against the Small Business Fair Dismissal Code, and employees there need 12 months of service to claim.