Termination of Employment: The Essentials

Last updated: 09 Feb 2017

This page is: current

The Essentials

This page sets out the legislative requirements relating to the termination of employment of Australian Public Service employees.

TopicLegislation
1. Power to terminate employment
An Agency Head may at any time, by notice in writing, terminate the employment of an Australian Public Service (APS) employee in the agencySection 29(1) of the Public Service Act 1999 (the Act)
2. Limitations
Employment of ongoing employees may only be terminated on certain groundsSection 29(3) of the Act
The Fair Work Act 2009 (Fair Work Act) applies to termination of employmentUnfair dismissal and general protections provisions of the Fair Work Act apply
Some superannuation legislation limits the circumstances in which employment may be terminated on the ground of incapacitySection 54C of the Superannuation Act 1976 and equivalent provisions in Superannuation Act 1990 and Superannuation Act 2005
The Commissioner may issue directions setting out procedures to be followed when terminating the employment of an APS employee. There are no other grounds currently prescribed.Section 11A(1) of the Act
3. Grounds for termination - ongoing employees
For an ongoing APS employee, the notice of termination must specify the ground(s) that are relied on. There are seven grounds for termination.
These are:
  • the employee is excess to the requirements of the agency
  • the employee lacks, or has lost, an essential qualification for performing his or her duties
  • non-performance, or unsatisfactory performance, of duties
  • inability to perform duties because of physical or mental incapacity
  • failure to satisfactorily complete an entry-level training course
  • failure to meet a condition imposed under subsection 22(6)
  • breach of the Code of Conduct

The Act permits further grounds to be prescribed by the regulations. There are no other grounds currently prescribed

Sections 29(2) and (3) of the Act
4. Termination of employment - additional requirements SES employees
Under section 29, an agency head cannot terminate the employment of SES employees unless the Commissioner has issued a certificate stating that:
  • all relevant requirements of the Directions made under ss 11A(1) of the Act have been satisfied in respect of the proposed termination; and
  • the Commissioner is of the opinion that the proposed termination is in the public interest

The Commissioner has not made any specific directions about terminating the employment of SES employees

Section 38 of the Act
Agency heads have the discretion to offer an incentive to retire to SES employees.Section 37 of the Act
5. Termination of employment - non-ongoing employees
Non-ongoing employees must be engaged for a specified term, a specified task or on an irregular or intermittent basis

Where employment ceases at the specified end date, the termination is not an employer-initiated termination for the purposes of the Fair Work Act

Section 22 of the Act
Non-ongoing employees can have their employment terminated at any time by notice in writing

Note: The grounds for termination in s29(3) of the Act do not apply to
non-ongoing employees

Section 29(1) of the Act
If an enterprise agreement, or other industrial agreement or a contract, sets out procedures applicable to the termination of employment of a non-ongoing employee, then those procedures must be followed 
6. Review rights
Employees have no right of review to the Merit Protection Commissioner (MPC) for a decision to terminate their employmentSection 33(1) of the Act
The Fair Work Act contains provisions relating to:
  • claims for unfair dismissal on grounds that the termination was harsh, unjust or unreasonable
  • claims that dismissal contravened general protection provisions, for example, by exercising workplace rights, lawful participation in industrial activity or was unlawfully discriminatory

Further prescription is also often found in agency's policies and procedures. Whether these additional procedures were followed may go towards a finding that a termination was harsh, unjust or unreasonable

Relevant provisions of the Fair Work Act are:
  • Part 3-2- unfair dismissal
  • Part 3-1- general protections claims
7. Other matters
The Fair Work Act contains provisions relating to:
  • the obligations of employers to notify Centrelink and registered employee associations where it proposes to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature
  • notice of termination and termination payments, including certain redundancy payments

The common law obligations of procedural fairness apply in respect of termination of employment. Procedural fairness obligations vary depending on the circumstances. At a minimum, employees must be given an opportunity to comment on the case against them and a proposal to terminate their employment
Termination of employment must not be unlawfully discriminatory

Relevant provisions of the Fair Work Act are:
  • section 530- notification to Centrelink
  • section 531- notification to registered employee associations
  • section 117- notice or pay in lieu
  • section 119- National Employment Standard redundancy pay
Agency enterprise agreements may also include additional procedures and processes about termination that go beyond the requirements of the Act or the Fair Work Act. In particular, most agreements prescribe processes that must occur before terminating the employment of excess employees, and when managing underperformance. 
The MPC may investigate a complaint by a former APS employee concerning their entitlements on separation.Public Service Regulation 7.2