Termination and redundancy advice

Before employment ends, test the reason, the process and the paperwork.

A commercially understandable reason is not enough on its own. Employers should identify the correct legal pathway, check the applicable system and instrument, complete the required process and calculate notice, final pay and redundancy entitlements before communicating a final decision.

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Performance, misconduct, incapacity, genuine redundancy, expiry of a lawful fixed term and abandonment are different pathways.

The evidence, warnings, consultation and employee response required will depend on the reason.

General protections, discrimination, temporary absence and workplace rights risks can apply separately from unfair dismissal.

A dismissal application in the national system usually has a 21-day deadline, so employer records may be tested quickly.

What good looks like

Redundancy is about the job, not a convenient label for the employee.

Under the national system, genuine redundancy includes the job no longer being required because of operational change, compliance with applicable consultation obligations and consideration of reasonable redeployment.

Correct pathway

Do not use redundancy to solve a performance or relationship problem where the job still needs to be performed.

Consultation

Check the applicable award or enterprise agreement and complete the required consultation before termination.

Redeployment

Consider suitable roles within the employer and associated entities where the national genuine redundancy test applies.

Final entitlements

Calculate notice, accrued leave, outstanding pay and redundancy pay where required before the final conversation.

Employer checklist

Before communicating termination

Confirm the employing entity and applicable state or national system.
Write down the genuine reason and test the supporting evidence.
Check the contract, award, agreement, policies and previous correspondence.
Complete any required response, warning, consultation or redeployment process.
Check general protections, discrimination, leave and injury-related risks.
Prepare the meeting, letter, notice and final pay calculation.

Common traps

Termination mistakes that are hard to undo

Making the final decision before the employee's response or consultation is complete.
Calling a dismissal redundancy when the role continues substantially unchanged.
Assuming a small business has no dismissal process to follow.
Relying on a contract notice clause without checking the National Employment Standards, award or agreement.
Dismissing by text or email without a clear operational reason for using that method.

Real Fair Work Commission decision

The role was genuinely no longer needed, but the process still failed.

In Goto v Allen Aus Pty Ltd t/a Momo Sushi [2023] FWC 2689, the Commission accepted that the employer could no longer afford a chef and the owner took over the work. However, the employer did not meet the Fast Food Award consultation requirements. The dismissal was not a genuine redundancy and was found harsh because of the deficient process, one day's notice and dismissal by text.

A real operational change does not remove consultation obligations or make the method of dismissal irrelevant.Read the primary source: Fair Work Commission, Goto v Allen Aus Pty Ltd [2023] FWC 2689

Can duties continue after a role is made redundant?

Sometimes. The Commission's guidance recognises that a job may cease even though some duties are redistributed. The full genuine redundancy test, including consultation and reasonable redeployment, still needs to be considered.

Do small businesses need to pay redundancy pay?

Some small business employers are exempt from the National Employment Standards redundancy pay obligation, but exceptions and industry-specific provisions can apply. Consultation and dismissal risks are separate questions.

How quickly must an unfair dismissal claim be lodged?

In the national system, the usual deadline is 21 days after the dismissal takes effect. Extensions are only available in limited circumstances.

Check the source

Primary guidance used on this page.

This page provides general information for employers. Workplace outcomes depend on the employing entity, applicable system, instrument and facts. It is not legal advice. Read the full website disclaimer.

How Stephen can help

Review the decision before it becomes a dismissal claim.

Stephen can review the reason, evidence, applicable process, consultation, meeting plan, letter and final steps before the employer communicates its decision.

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