For more information, please contact the ADA HR Advisory Service on 1300 232 462 ada.org.au
Termination – Factsheet
Termination of employment or engagement is an area which Practices, and employees can find
difficult to navigate.
While Modern Awards and the National Employment Standards (NES) provide guidance as to how
much notice is required upon termination and resignation, in some cases, Practices may enter into
different contractual arrangements. In addition, Independent Contractors are not required to
provide notice of ending the engagement, nor are they entitled to notice should the Practice wish to
end the engagement, subject to any other agreement.
When reading this FAQ, care should be taken if you are based in Western Australia. If you are
employed in Western Australia please note:
i. If you are employed by an incorporated company, incorporated trust, or incorporated
partnership, you are covered by the Federal Workplace Relations System, and references to
the NES or Fair Work Act 2009 (FW Act) Act apply to you.
ii. If you are employed by an unincorporated company, unincorporated partnership, or
unincorporated trust, or are a sole trader you are covered by the Western Australian
Industrial Relations System and as such the NES and FW Act will not apply to you. Specific
reference is made throughout this FAQ as to the framework which applies to you.
If you are unsure which system applies to you, please call the ADA HR Advisory Service on 1300 232
462.
What is notice of Termination?
Notice of termination is an entitlement under the NES. The FW Act provides that if an employer
wishes to terminate an employee’s employment, it must provide written notice to the employee of
the termination and provide the requisite amount of notice. Notice of termination must be delivered
in one of the following ways:
a) delivering it personally; or
b) leaving it at the employee's last known address; or
c) sending it by pre-paid post to the employee's last known address.
Although an employer may have the right to terminate an individual’s employment upon notice, any
termination must be fair and for a lawful purpose.
The employee may be required to work out their notice period, or the employer can pay the
employee in lieu of working the notice period.
For more information, please contact the ADA HR Advisory Service on 1300 232 462 ada.org.au
Termination – Factsheet
The period of notice required under the FW Act is as follows:
Employees over the age of 45 and with 2 years continuous service must be provided with an
additional 1 weeks’ notice of termination.
Section 117 of the FW Act was amended in March 2021 to state that “A reference in this section
to continuous service with the employer does not include periods of employment as a casual
employee of the employer.” This means that if an employee was casual, and then became
permanent, only the period of permanent employment is relevant for determining how much notice
is required to be given.
Modern Awards also define the requisite period of notice required for termination. Generally, it is
the same as what is defined in the FW Act, however, may vary in some cases. In the case of any
variation, the Award terms will apply. Currently Dentists are not covered by any modern award. The
Health Professionals and Support Services Award 2020 (HPSS Award) covers support staff such as
Receptionists and Dental Assistants. The Health Professionals stream of the HPSS Award covers
Dental Technicians and from 1 July 2021 also covers Dental Hygienists, Dental Prosthetists, and Oral
Health Therapists.
Who doesn’t get notice of termination?
Casual employees.
Employees engaged for a specified period.
Employees terminated for serious misconduct (such as theft or fraud).
Western Australia Practices:
For Practices which are operating an unincorporated business in Western Australia, the Industrial
Relations Act 1979 (the IR Act) and the Minimum Conditions of Employment Act 1993 (WA) (the MCE
Act) apply.
Period of Continuous Service Period of Notice
Less than 12 months 1 week
More than one year but not more
than 3 years
2 weeks
More than 3 years but not more
than 5 years
3 weeks
More than 5 years 4 weeks
For more information, please contact the ADA HR Advisory Service on 1300 232 462 ada.org.au
Termination – Factsheet
This means notice of termination is governed by the MCE Act which provides that in order to
terminate the employment of an employee, the employer shall give to the employee the following
written notice of dismissal:
Longer Notice Periods
The FW Act, MCE Act and Modern Awards define the minimum notice period required. Practices
may, however, define a longer notice period than what is required in a contract. This is especially
common for dental practitioners. In this case, the contractual term will override the FW Act or MCE
Act, as it is providing for a greater period.
Practices cannot define a shorter period than what is provided in the applicable Modern Award or
legislation.
Risks in Termination
An employer must only terminate where they have a valid reason and for a lawful purpose. National
System employees are protected from unfair dismissal after they have met the minimum
employment period under the FW Act and may also make general protections claims if adverse
action is taken against them because of a protected reason.
Unfair Dismissal:
Unfair dismissal occurs when an employee is dismissed in a way which is harsh, unjust, or
unreasonable. To make a claim, an employee must have met a minimum employment period. The
minimum employment period is:
Small business employer (less than 15 employees): 12 months
Large business employer (15 or more employees): 6 months.
A Practice can terminate within this period by providing the relevant notice of termination (except in
the case of summary dismissal) without the employee having access to protection from unfair
dismissal.
Any termination outside this period must be for a valid reason and the Practice must ensure that a
procedurally fair process has taken place before termination occurs.
Period of Continuous Service Period of Notice
Less than 1 year 1 week
1 year and up to the completion of
3 years
2 weeks
3 years and up to the completion
of 5 years
3 weeks
5 years and over 4 weeks
For more information, please contact the ADA HR Advisory Service on 1300 232 462 ada.org.au
Termination – Factsheet
General Protections:
Employees have workplace rights and protected attributes, and an employer cannot take adverse
action against an employee because the employee exercises a workplace right or possesses a
protected attribute.
For example, taking personal leave is a workplace right, therefore, if an employee is terminated for
taking that leave, they would be able to make a general protections claim on the basis of adverse
action.
An employee does not need to meet a minimum employment period to make this type of claim.
Independent contractors are also covered by the general protections’ laws.
Resignation
Employees can provide notice of resignation at any time. A Practice cannot stop the employee from
resigning. Employees (except casuals) are required to provide notice of resignation.
If an employee is covered by the HPSS Award and at least 18 years old and they fail to provide notice
of resignation, the Practice may be able to withhold up to one weeks’ wages from wages owed to the
employee. A Practice is not permitted to withhold wages if an employee is not covered by the HPSS
Award.
Independent Contractors
Independent Contractors are not entitled to notice of termination, nor are they required to provide
it. However, it is common for Practices and Contractors to agree to a notice period for termination of
their agreement.
Post-Employment Restraints in Contracts
Practices may include post-employment or engagement restraints in contracts. A restraint of trade
clause aims to protect the Practice’s interests by controlling what a worker can and cannot do for a
period after they leave the Practice, and within a certain geographical boundary. They must be
reasonable in order to be enforced.
Members should refer to the Post-Employment Restraints Fact Sheet and contact the ADA HR
Advisory Service for more information.
Retention Clauses for Remedial Work
When engaging Independent Contractors, Practices may include a clause within a written agreement
to retain funds for any remedial work required. A contractor’s primary responsibility is to carry out
services to the standard required in the Agreement. Generally, it is the contractor’s responsibility to
ensure any defect in their work is remedied.
For more information, please contact the ADA HR Advisory Service on 1300 232 462 ada.org.au
Termination – Factsheet
A contract may state that the Practice will retain a percentage of monies owed to the contractor for
a specified duration, in case the Practice needs to remedy any work performed by the Contractor
Dentist. This ensures that the Practice does not incur a cost in remedying the defect.
The clause may also contain a provision to allow the contractor to remedy the works, rather than the
Practice taking steps to remedy the work itself or engaging another contractor to do so.
Any amount retained must be reasonable in all the circumstances. If no remedial work is required,
the funds must be returned to the contractor at the end of the specified period.
The Australian Industrial Relations framework is notoriously complex, and it can be difficult to
ensure you have complied with all your obligations under the Fair Work Act and any applicable
Modern Award. If you have any questions, please call the ADA Telephone Advisory Service 1300
232 462.
