Who can use this checklist?

This checklist can be used by all employers throughout Australia, except the following excluded employers:

• Non-constitutional corporation employers in Western Australia;
• State public sector employees (ie employees of a Minister, the Governor, or the Crown); and
• Local Government employers — except in Tasmania and Victoria.

Excluded employers may however, wish to use this document, but they should first obtain legal advice.

Commentary

Termination of employment involves many legal risks.  It is important to be aware of these risks and how they can be managed. For example, the Fair Work Act 2009 (Cth) exposes employers to the risk of unfair dismissal claims. Excluded employers may also have exposure under applicable State unfair dismissal laws.

There are also a number of other legal risks when terminating an employee’s employment (eg. discrimination and unlawful termination and general protections claims). Therefore it is crucial to manage the termination process diligently.

This checklist provides tips on managing the termination process and highlights the key considerations for an employer when making a decision to terminate an employee.

When you are calculating termination entitlements, you should be aware that they are often quite complex, particularly for long-serving employees. It is therefore prudent that you check any calculations thoroughly. If you are unsure of the correct entitlements to offer or pay or the relevant taxation treatment for each component you should seek legal and relevant financial and taxation advice.

Where an employee requests that you provide a written reference, you should carefully consider this as legal action can arise if the reference you provide is not a true reflection of the employee’s employment and a future employer employs your former employee relying on that reference.

If you are unable to complete a matter outlined in the checklist, you should seek legal advice.