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.

TopicLegislation

Key

  • Public Service Act 1999—PS Act
  • Public Service Regulations 1999—Regulations
  • Australian Public Service Commissioner's Directions 2016—Directions
  • Fair Work Act 2009—FW Act
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)
2. Limitations

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)

FW Act

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.
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)
  • a finding under established agency procedures that there has been a breach of the APS Code of Conduct.

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:

  • all relevant requirements of the Directions made under ss 11A(1)* of the PS 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.

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)

FW Act

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

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