Terminating employment: Unplugged

Last updated: 30 Nov 2017

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Key information

The employment of an APS employee can be terminated at any time, by notice in writing. However, the Public Service Act 1999 (PS Act) and other employment legislation—including the Fair Work Act 2009 (FW Act)—place some limitations.

Agencies are also bound by arrangements included in their enterprise agreements and other workplace instruments such as individual employment contracts.

FW Act

Actions to terminate employment must comply with provisions relating to adverse actions and unfair dismissal. The FW Act also establishes minimum entitlements for redundancy pay in certain circumstances.

PS Act

Ongoing employees—employment has no nominated end date

Employment can only be terminated for reasons described in section 29(3) of the PS Act. There are seven reasons, including:

The employee is excess (redundant)

Arrangements for redeployment, reduction and retrenchment of excess staff are included in agency enterprise agreements, other workplace instruments and agency procedures.

These arrangements cannot offer less than the minimum entitlements for redundancy pay provided in the FW Act.

Unsatisfactory performance

A decision to terminate employment for poor performance will usually be handled as part of an agency's performance management arrangements.

Actions must take account of agency procedures, procedural fairness and provisions relating to unfair dismissal in the FW Act.

Breach of the Code of Conduct

A decision to terminate employment on the grounds of misconduct can only occur following an investigation conducted in accordance with an agency’s misconduct procedures.

While there may be circumstances where an employee is immediately suspended—with or without pay—any decision to terminate employment can only be made following an investigation under such procedures.

Non-ongoing (temporary) employees—employment has a nominated end date

Arrangements that apply to the termination of an employment contract before the nominated end date can be detailed in enterprise agreements and/or individual employment contracts.

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.

SES

Employment of an SES employee cannot be terminated unless the Australian Public Service Commissioner is satisfied that it is in the public interest.

More information

Terminating employment: Legislation

Terminating employment: Guidelines

Non-ongoing (temporary) employment: Legislation

More information for HR practitioners is at Management essentials.

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