The executive summary
Under the Fair Work system you must meet minimum notice and redundancy standards (where applicable), pay final entitlements correctly, and follow any award or enterprise agreement process. Unfair dismissal risk turns heavily on two things: a valid reason, and procedural fairness — a valid reason is necessary but not sufficient. In redundancy cases, “genuine redundancy” depends on operational change, award/EA consultation, and redeployment reasonableness. Separate constraints apply to workers on workers’ compensation, including South Australia’s Return to Work Act 28-day notice requirement. The operating model: triage the exit pathway, run a defensible process, preserve evidence, pay correctly and on time, and manage the dispute pathways without escalating risk.
01 · Pathway triage
Classify the situation before you act.
Most risk comes from choosing the wrong pathway — labelling a performance problem as redundancy, or applying a summary dismissal label without a fair process. Mixing pathways is a frequent cause of adverse findings. Run the triage first.
| The situation | The pathway |
|---|
| Job no longer required due to operational change | Redundancy — consult, plus redeployment assessment |
| Capacity or performance (skills, output, behaviour short of serious misconduct) | Performance management — warnings and opportunity to improve |
| Policy breach or trust breach | Misconduct investigation; if serious misconduct is alleged, summary dismissal is possible but still needs a fair investigation and response opportunity |
| Employee resigns | Resignation — notice, acceptance, final pay |
| Employee stops attending without explanation | Abandonment risk — contact attempts and advice before acting |
South Australia overlay — injured workers
If a worker has suffered a work injury, the Return to Work Act 2014 (SA) s20 means you must not terminate without first giving ReturnToWorkSA and the worker at least 28 days’ notice of proposed termination, subject to exceptions. Document the notice, engage early with the claims agent on suitable employment options, and if relying on the serious and wilful misconduct exception, preserve the evidence — the burden may sit with the employer under SA law.
02 · Notice & final pay
The baseline: written notice, minimum periods, accurate final pay.
Written notice must specify the day of termination, and that day cannot be before the notice is given. Minimum NES notice periods depend on continuous service, with an additional week for some employees over 45 with at least 2 years’ service. Payment in lieu must be at the full rate of pay for the hours the employee would have worked. Genuine casuals may not be entitled to NES notice; awards and agreements can add obligations. Use the FWO Notice and Redundancy Calculator — and if an enterprise agreement is more generous, use the agreement.
Final pay — what to include
- Outstanding wages for hours worked, including penalty rates and allowances where applicable.
- Unused annual leave — plus annual leave loading if it would have been paid during employment.
- If applicable: payment in lieu of notice, redundancy pay, and accrued or pro rata long service leave (subject to state law).
- Not sick/carer’s leave — it is not paid out on termination.
03 · Performance pathway
No surprise terminations: the fair-process pattern.
Underperformance is distinct from serious misconduct — it covers not performing duties to standard, non-compliance with policies, and disruptive behaviour. The Commission weighs warnings for unsatisfactory performance under Fair Work Act s387, so the process is the protection:
Set expectations in writing
Warn + support
Reasonable improvement period
State the reason
Genuine chance to respond
Support person
Put concerns in writing with specific examples and dates, offer coaching, training or reasonable adjustments where relevant, follow up with reviews, and link consequences — including dismissal — to a failure to improve.
What causes loss at the Commission
- Vague feedback or “surprise” termination with no prior warnings or opportunity to improve.
- Poor documentation — no evidence of expectations, coaching or warnings.
- Conflating behaviour and performance without articulating the actual reason (capacity vs conduct).
- Ignoring health issues or reasonable adjustments where relevant — which can trigger other legal risks.
04 · Conduct pathway
Misconduct: investigate before you decide.
Distinguish the tiers. Lower-level breaches may warrant counselling or warnings. Serious misconduct — wilful or deliberate behaviour inconsistent with continuing employment, conduct causing serious and imminent risk to health and safety or the employer’s reputation, viability or profitability, theft, fraud, assault, sexual harassment, intoxication at work, or refusal to follow lawful and reasonable instructions (Fair Work Regulations reg 1.07) — may justify summary dismissal without notice. Even then, run a fair process.
The investigation workflow — defensible minimum
- Triage and stabilise risk: safety, wellbeing, evidence preservation.
- Define allegations clearly — what conduct, when, where, which policies breached.
- Collect evidence: documents, CCTV, system logs, witness accounts; interview witnesses neutrally with contemporaneous notes.
- Put allegations to the employee in writing and provide a genuine opportunity to respond.
- Weigh the response and mitigating factors; decide a proportionate outcome.
- Communicate the outcome in writing: findings, reasons, next steps or appeal.
05 · Redundancy pathway
Genuine redundancy has three legs — and redeployment is the one that fails.
Redundancy is when the business no longer needs the job done by anyone (or becomes insolvent or bankrupt). Under Fair Work Act s389 it is only “genuine” if all three hold: the job is no longer required due to operational change; you complied with any award/EA consultation obligation; and it would not have been reasonable to redeploy the employee within the enterprise or an associated entity. Redundancy pay under the NES is based on continuous service (excluding casual service), calculated at base rate for ordinary hours — with eligibility exceptions, including for small business employers, and instruments may provide more.
The evidence-first checklist
- Confirm the business case and roles affected — keep the operational change evidence.
- Check award/EA consultation clauses, redundancy provisions and redeployment arrangements; plan consultation timing, information and records.
- Run a redeployment scan across internal vacancies and associated entities — consider training, location, classification and pay impacts.
- Keep a decision record: why redundant, consultation undertaken, redeployment considered and outcomes.
- Calculate notice, redundancy pay, leave payouts and long service leave; line up EAP, outplacement and consistent messaging.
Case law watchpoint
Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29: the redeployment inquiry can go broader than existing vacancies — into how you could structure the workforce, including contractor use. Document why redeployment was or was not reasonable, including workforce structure considerations.
06 · Small business & disputes
Know the Code, and know the clock.
For employers with fewer than 15 employees, a dismissal may be considered fair if it is consistent with the Small Business Fair Dismissal Code: reasonable grounds for summary dismissal on sufficiently serious conduct; otherwise a valid reason, a warning (preferably written), a chance to respond and a reasonable chance to rectify. Confirm headcount at the relevant time and the minimum employment period — 12 months for unfair dismissal eligibility in a small business.
After termination, two pathways run through the Fair Work Commission. Unfair dismissal asks whether the dismissal was harsh, unjust or unreasonable (or not a genuine redundancy) — weighing valid reason, notification, opportunity to respond and warnings. General protections asks whether you terminated because the employee exercised a workplace right, such as making a complaint. Unfair dismissal applications generally must be lodged within 21 days.
Before any high-risk termination
- Run a claims risk scan: recent protected activity — complaints, union activity, safety issues, leave requests?
- Make the performance evidence and process stand alone from any protected activity timeline.
- Use an independent reviewer for high-risk dismissals; keep contemporaneous decision-maker notes — they often become decisive evidence.
- For abandonment: attempt contact via multiple channels, write setting expectations, consider innocent explanations, and seek advice — never “auto-terminate”.
Currency & care. General information for practitioners, not legal advice. Current as at
27 February 2026 (Adelaide, South Australia); validate thresholds, dates and instruments against the
primary sources above before relying on them. Federal (national system) lens with South Australian
overlays noted where relevant.