This website applies only to residents and the law of New South Wales, Australia.

3. THE FEDERAL SYSTEM (continued)

3.5 What is a claim for termination without notice in the federal system?

Payment in lieu (instead) of notice

Your employer can give you payment instead of notice, that is, 'pay you out' rather than have you work during the notice period. In this case, the payment must be at least equal to the total amount you would have been entitled to if you had continued to work until the end of the required notice period.

What is serious misconduct?

The only situation where employer notice (or payment in lieu) is not required is where the employee's serious and wilful misconduct entitles the employer to instantly or summarily dismiss the employee. The employer may ask the employee to leave the workplace immediately.

Some things the courts have found may constitute serious misconduct are:

• theft;
• fraud;
• assault;
• misappropriation of funds;
• serious harassment (including sexual harassment);
• abusing or threatening another employee;
• malicious damage to property;
• a wilful, serious breach of codes of conduct or workplace policies;
• wilful disobedience of a lawful and reasonable instruction given by a supervisor; and
• behaviour wilfully endangering themselves or others.

However, what will constitute 'serious misconduct' depends on the facts in each circumstance so seek advice if you feel you have been unfairly treated.

Employees who cannot claim for 'Failure to comply with notice provisions'

Employees who are excluded from making claims under the notice provisions are:

• Casual employees employed for less than 12 months;
• Daily hire employees in the building and construction industry;
• Daily hire employees in the meat industry;
• Weekly hire employees in the meat industry, whose termination is determined solely by seasonal factors; and
• Maritime employees (whose employment is covered by Schedule X (Marine Cooks, Stewards and Seamen) of the Maritime Industry Seagoing Award 1983 (as in force on 16 November 1994)).

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