Terminating employment: Legislation
Last updated: 30 Nov 2017
This page is: current
This page sets out the basic legislative requirements relating to terminating the employment of an Australian Public Service (APS) employee.
More information is at Management essentials.
|1. Power to terminate employment|
|An agency head may at any time, by notice in writing, terminate the employment of an APS employee in the agency.||PS Act s29(1)|
Employment of ongoing employees may only be terminated on certain grounds described in the PS Act.
Provisions in the FW Act apply to all employees, including in relation to minimum redundancy pay, unfair dismissal and general protections.
Superannuation legislation limits the circumstances in which employment may be terminated on the ground of incapacity.
Any procedures established in an enterprise agreement, agency policy or employment contract must be followed.
Termination of employment must not be unlawfully discriminatory.
PS Act s29(3)
Superannuation Act 1976 s54C and equivalent provisions in Superannuation Act 1990 and Superannuation Act 2005
|3. Ongoing employees|
For an ongoing APS employee, the notice of termination in writing must specify the ground(s) that are relied on. There are seven grounds for termination.
PS Act s29(2) and (3)
|4. Additional requirements for Senior Executive Service (SES) employees|
An agency head cannot terminate the employment of an SES employee unless the Australian Public Service Commissioner (the Commissioner) has issued a certificate stating that:
*The Commissioner has not made any specific directions about terminating the employment of SES employees.
Agency heads have the discretion to offer an incentive to retire to SES employees.
PS Act s38
PS Act s37
|5. Non-ongoing (temporary) employees - SES and non-SES|
Non-ongoing employees can have their employment terminated at any time by notice in writing. There are no prescribed grounds in the PS Act.
Where employment ceases at the specified end date, the termination is not an employer-initiated termination for the purposes of the FW Act
The FW Act makes provision for minimum compensation for the early termination of a temporary employment contract in certain circumstances—essentially when an employee becomes redundant.
Under unfair dismissal provisions, compensation must also be reasonable.
PS Act 29(1)
|6. Review rights|
There is no right of appeal or review under the PS Act or the PS Regulations in relation to a decision to terminate the employment of an ongoing or non-ongoing APS employee.
The FW Act contains protections against unfair dismissal and dismissal in breach of the General Protections
APS employees may also be able to apply for judicial review of termination on the ground of failure to comply with the requirements of administrative law, including procedural fairness and the requirement to follow agency procedures.
PS Act 33(1)
FW Act -
Part 3-2- unfair dismissal
Part 3-1- general protections claims