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

4. THE NSW SYSTEM (continued)

4.10 What is a claim for termination without notice in the NSW system?

If your employment is terminated, you must be given the required amount of notice or payment instead of notice. The NSW Industrial Relations Act doesn't specify the amount of notice required. The amount of notice you should have received may be set out in a letter of appointment or written contract, in a company policy that was referred to in your letter of appointment or written contract, or in your Award.

If no notice period was agreed, then you would normally be entitled to reasonable notice. What is reasonable will depend on a number of things, including:

• your age;
• the position you held;
• the nature of your employment;
• your length of service; and
• the likely difficulty in finding another job.

If you're not sure how much notice you're entitled to, talk to your union or get legal advice.

Payment in lieu (instead) of notice

Your employer may pay you out for the notice period. In this case, the payment must be at least equal to the total amount you would have earned if you had continued to work during the notice period.

Can I be dismissed without notice or payment instead of notice?

Dismissal without a period of notice, or payment in lieu of notice, is known as summary dismissal. Generally, your employer can only dismiss you summarily or on the spot if you're guilty of serious misconduct.

Serious misconduct must be serious and wilful and show an intention on the employee's part that they no longer mean to be bound by the employment contract. The following examples of serious misconduct would probably justify summary dismissal:

• theft;
• fighting at the workplace (unless solely in self-defence);
• serious harassment of other employees (eg; sexual harassment);
• drunkenness at work which affects the performance of duties;
• wilful disobedience of a lawful command;
• objectionable, abusive or obscene language in circumstances where it is inconsistent with the worker's duties (eg; a salesperson abusing customers); and
• conviction of a crime where it reflects on the worker's ability to carry out their duties (eg; a bank teller might be lawfully dismissed by the employer if convicted of some form of theft or fraud, but not if convicted, for example, of possession of marijuana).

In rare cases, where the employee has lengthy service and an otherwise unblemished work record it may be considered harsh (and so an unfair dismissal) to dismiss an employee for misconduct. This will depend on the seriousness of the misconduct.

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