Contemporary issue: termination of employment: HSC Legal Studies

What this dot point is asking

Termination of employment is one of the four contemporary issues that must be studied in the Workplace option of the Legal Studies Stage 6 Syllabus (2009). You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses to it.

It was examined in 2024, paired with leave: Question 30(b) asked "To what extent are legal responses effective in addressing the issues of leave and termination of employment?". NESA's feedback criticised answers that treated one issue in detail and the other briefly, and asked for relevant cases. So prepare termination with cases (TWU v Qantas, Helensburgh Coal, Lattouf) and evidence, and pair it with leave.

The answer

Identifying the issue

Termination is the point where the imbalance of power in employment is sharpest: the employee loses their income, often without warning, and may struggle to find new work. The issues are:

• Unfair process or reasons: dismissal without a valid reason, a chance to respond, or warnings.
• Discriminatory or retaliatory dismissal: dismissal because of pregnancy, disability, age, political opinion, a complaint, union membership or taking leave.
• Redundancy and restructuring: mass redundancies, outsourcing and automation, and whether employers genuinely try to redeploy staff.
• Insecure work: casuals, fixed-term workers and contractors have fewer protections when work ends.
• Access and delay: short time limits, cost and a growing FWC caseload. The FWC received 44,075 lodgments in 2024-25 (24 per cent above the five-year average), driven by unfair dismissal and general protections dismissal applications; general protections dismissal applications rose to 6,209.

Employers need protection too: the ability to dismiss poor performers or employees guilty of misconduct, to restructure, and to avoid speculative claims.

Legal responses

1. The National Employment Standards. An employer must give written notice of termination of one to four weeks depending on length of service, plus an extra week for employees over 45 with at least two years' service, or pay in lieu (s 117). A redundant employee is entitled to redundancy pay of 4 to 16 weeks depending on service (s 119), unless the employer is a small business (fewer than 15 employees). No notice is needed for summary dismissal for serious misconduct.

2. Unfair dismissal (Fair Work Act Part 3-2).

• Who is protected (s 382). A national system employee who has served the minimum employment period (6 months, or 12 months with a small business) and who is covered by an award or agreement or earns below the high income threshold ($190,100 from 1 July 2026). Casuals are protected only if they worked regularly and systematically with a reasonable expectation of continuing work.
• What is unfair (s 385). A dismissal that was harsh, unjust or unreasonable, not consistent with the Small Business Fair Dismissal Code (for small business), and not a case of genuine redundancy. In deciding, the FWC considers (s 387) whether there was a valid reason related to capacity or conduct, whether the employee was notified of the reason and given an opportunity to respond, any unreasonable refusal of a support person, warnings about unsatisfactory performance, and the size of the business.
• Process and remedies. The claim must be lodged within 21 days. Most claims settle at FWC conciliation. The FWC can order reinstatement (the primary remedy) or compensation of up to six months' pay or half the high income threshold ($95,050 from 1 July 2026).

3. Genuine redundancy (s 389). A redundancy is genuine only if the job is no longer required because of changes in operational requirements, the employer met any obligation to consult, and it would not have been reasonable to redeploy the employee. In Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 (6 August 2025), a coal mine made 22 employees redundant but kept using contractors to do mining work. The High Court unanimously held that the FWC can ask whether the employer could reasonably have changed how it used its workforce, including by reducing contractors, to redeploy employees. The dismissals were not genuine redundancies. The decision strengthens job security and makes outsourcing-based restructures harder to defend.

4. General protections (Part 3-1). An employer must not take adverse action, including dismissal, against an employee because they have or exercise a workplace right (s 340), because of a protected attribute such as race, sex, age, disability or political opinion (s 351), or because of a temporary absence for illness or injury (s 352). The employer bears the onus of proving its reason was not the prohibited one (s 361). Remedies are uncapped compensation, reinstatement and civil penalties.

• Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27. In 2020 Qantas outsourced its ground handling at ten airports, ending the jobs of about 1,700 employees. The High Court unanimously held (13 September 2023) that Qantas contravened s 340 because a reason for the decision was to stop the employees exercising future workplace rights to bargain and take protected industrial action. Qantas agreed in December 2024 to pay $120 million compensation to about 1,820 workers, and on 18 August 2025 the Federal Court imposed a $90 million penalty, the largest in Australian industrial law, with $50 million paid to the TWU.

5. Unlawful termination (s 772)

Termination for reasons including a protected attribute, temporary absence or union membership is unlawful. In Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669, the Federal Court held the ABC contravened s 772 by ending a casual presenter's engagement for reasons including her political opinion; it ordered $70,000 compensation and later $150,000 in penalties.

6. Common law and state law

An employee can sue for wrongful dismissal (breach of contract) if dismissed without the notice the contract requires, but the common law gives no remedy for an unfair process and implies no term of mutual trust and confidence (Commonwealth Bank v Barker (2014)). NSW public sector employees use the unfair dismissal provisions of the Industrial Relations Act 1996 (NSW) in the IRC.

7. Other protections

Employers must consult under awards and agreements before major change and redundancies. Anti-discrimination law also covers dismissal. Since 26 August 2024 (26 August 2025 for small business employers), the right to disconnect is a workplace right, so an employee cannot be dismissed for refusing unreasonable after-hours contact.

The history: termination as a reflection of changing values

The history shows law reform swinging with political values: unfair dismissal protection has been extended, removed and restored.

Non-legal responses

• Unions represent members in dismissal and redundancy disputes, negotiate redundancy and redeployment clauses above the NES, and run test cases (the TWU funded the Qantas litigation for five years).
• Community legal centres and Legal Aid give free advice within the 21-day window, which many workers would otherwise miss.
• The media coverage of the Qantas case and of mass redundancies adds reputational pressure.
• Employer associations advise members on fair dismissal processes, reducing unfair dismissals.
• Internal procedures: performance management, warnings and HR processes can resolve problems before dismissal.

Evaluating the effectiveness of legal and non-legal responses

Judgement. Legal responses to termination are effective to a large extent for permanent employees who know their rights and act within 21 days: they combine minimum entitlements, a fair process requirement, strong protection against discriminatory and retaliatory dismissal, and, since Helensburgh Coal, a more demanding redundancy test. They also balance employers' interests through the small business code, the compensation cap and the genuine redundancy exclusion. Their effectiveness is limited for insecure workers, by short time limits, and by modest settlements that rarely match the loss of a job. Non-legal responses, especially unions and legal centres, are what make many of these rights reachable.

In one sentence

The law protects employees when employment ends through NES notice and redundancy pay, unfair dismissal remedies, and general protections and unlawful termination provisions strengthened by cases such as Qantas (2023 to 2025), Lattouf (2025) and Helensburgh Coal (2025), while preserving employers' right to dismiss fairly and restructure, but eligibility gaps, short time limits and modest settlements limit how much justice it delivers.

Try this

Q1. Distinguish between unfair dismissal and unlawful termination. (4 marks)

• What the marker wants. The test for each, the provisions (Part 3-2; s 772 or s 351), remedies and an example.

Q2. Explain the significance of Helensburgh Coal Pty Ltd v Bartley (2025). (5 marks)

• What the marker wants. The genuine redundancy test, the facts, the High Court's holding and its impact on outsourcing and job security.

Q3. Assess the effectiveness of the general protections provisions in achieving justice for employees. (8 marks)

• What the marker wants. The provisions and reverse onus, the Qantas case, the rise in claims and FWC reforms, and a judgement.