Who can use this correspondence
This correspondence can be used by all employers. Small business employers (with fewer than 15 equivalent full-time employees) may also wish to consult the Small Business Fair Dismissal Code.
Commentary
This letter should only be used where an employer wants to terminate an employee’s employment for a reason other than serious misconduct, redundancy, or where the employee is employed for a specified period which is concluding. It should be used where the employer wants to terminate an employee’s employment as a result of repeated inappropriate conduct or repeated poor performance.

The letter regarding termination aims to clearly state the reasons for the termination of employment, and set out the procedures that the employer has followed in relation to inappropriate conduct or poor performance. In order to terminate the employment of an employee the employer must have both a valid reason for the termination, and in most cases must also be able to demonstrate that the employer has followed a fair pre-termination procedure.

This letter alone cannot prevent an employee from seeking a claim against the employer in relation to the termination of their employment. The employer should seek legal advice in relation to risks associated with the termination of an employee’s employment.

Employees are entitled to receive notice of termination of employment (except in circumstances of serious misconduct). The period of notice that an employee is entitled to receive may be determined by any one or more of the following:

• legislation
• contract of employment
• industrial instrument
• policies and procedures

The letter gives the employer the option to direct an employee not to attend work during the notice period. This direction is sometimes referred to as ‘gardening leave’. Whether an employee can be directed not to attend work or to take ‘gardening leave’ will be determined by the employee’s contract of employment and the nature of work the employee performs. If an employer is unclear as to whether they can direct an employee not to attend work during the notice period the employer should seek legal advice.

Where the employment of an employee terminates, there is also a mandatory requirement for National System Employers to advise the employee of their final date of employment. This requirement is addressed in the letter.

The letter also provides options for inclusion in relation to confidential information and other post-employment obligations, return of property, and payment of outstanding debts. Employers should be aware that the enforceability of those provisions will be determined by a number of factors. If an employer is uncertain as to whether the relevant provisions in the employee’s contract of employment are enforceable, legal advice should be sought.