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Key issues
- Are you employed by a NSW government agency, a Local Council, or a NSW state government owned corporation?
- Are you covered by an award, agreement or other industrial instrument?
- Is your union involved?
- Has your employment been terminated?
- Are you thinking of leaving work?
- Is your termination pay correct?
- Are you restricted from working for another employer or in the same industry?
- Did your employer provide you with a separation certificate?
What entitlements should I be paid if I am dismissed?
When your employment is terminated by your employer, you are entitled to:
- the required notice period or payment in lieu of notice, unless you were dismissed for serious misconduct
- accrued annual leave and loading entitlements
- accrued long service leave, but only if you have worked a minimum time, usually five years and above
any redundancy pay you are entitled to if you have been made redundant.
You should also check your employment contract, award or agreement as they may say that you are entitled to more than these minimum entitlements.
When should my employer pay me my termination pay?
Your award, contract or agreement may say when you should be paid your termination pay. Most awards say that your employer must pay you within seven days of your employment ending. If there is nothing in your award, contract or agreement, it would be best practice for an employer to pay you on your last day of work or at the end of the next pay period.
If you are having trouble getting your termination pay, see FAQ below What can I do if I am not paid my termination pay?.
For information about awards and agreements, see Awards & agreements on the Fair Work Ombudsman website.
What can I do if I am not paid my termination pay?
If you have not been paid your termination pay, you should discuss the situation with your employer first. If your employer refuses to pay you the termination pay that you are owed, you can contact the Fair Work Ombudsman to make a complaint.
In some cases, the Fair Work Ombudsman may be able to help you recover the money you are owed.
For more information, see Final pay on the Fair Work Ombudsman website.
If you are not able to recover your termination pay with the help of the Fair Work Ombudsman, you may need to start legal action against your employer to recover the money you are owed. Legal action must be started within six years of when the debt is owed to you.
For more information, see Recovering unpaid wages and entitlements - Frequently Asked Questions.
What notice should I be given by my employer if my employment is terminated?
If you were terminated, you should have been given written notice by your employer. The notice should include either the last day on which you will work, or state that you will be paid in advance for the notice period called payment in lieu of notice.
The amount of notice you must be given might be stated in your contract, award or agreement. If nothing is stated, the minimum amount of notice that your employer must give you is:
| Period of continuous service | Notice period |
|---|---|
| Not more than 1 year | At least 1 week |
| More than 1 year but not more than 3 years | At least 2 weeks |
| More than 3 years but not more than 5 years | At least 3 weeks |
| More than 5 years | At least 4 weeks |
If you are over 45 and have completed two years continuous service for your employer, you are entitled to one extra week notice.
If nothing is stated in your contract, award or agreement and you do not think the minimum notice period is sufficient given your circumstances, you may claim that you are entitled to reasonable notice. Reasonable notice can take into account factors like your skills, seniority, salary, length of service, your age to the amount of time it will take for you to find a similar position.
If you are trying to work out what reasonable notice is in your circumstances, you should get legal advice.
These notice periods may also apply if you are resigning from your job.
What notice should I get if I am dismissed during my probationary period?
You are normally entitled to the minimum amount of notice, which is usually one week's notice, unless your award, agreement or employment contract provides for a greater period of notice.
What does payment in lieu of notice include?
If your employer wants to pay you for the notice period, rather than have you work it, the pay you receive should include:
- the hours you would have worked at your full rate of pay
- any incentive-based payments and bonuses
- any loading you are entitled to
- any allowances you are entitled to
- any overtime or penalty rates that you would have been paid had you worked during the notice period.
If you are a pieceworker (an employee paid a fixed amount for a certain action or result, for example, being paid a certain amount for each piece of clothing made) you should contact the Fair Work Ombudsman about the rate at which your notice should be paid.
For more information, see What am I entitled to? in Wages and entitlements on the My problem is about section of our website.
Can my employer refuse to give me notice or pay me in lieu of notice?
Your employer can only refuse to give you notice or refuse to pay you in lieu (instead) of notice if you have been dismissed for serious misconduct. Serious misconduct can include things like theft, fraud, assault, sexual harassment, being drunk at work, refusing to do something at work that is a reasonable part of your job or seriously risking a colleague's health or safety in some way.
If you are not sure whether you are entitled to notice, you should get legal advice.
What if I do not get the required notice or am not paid in lieu of notice?
If your employer does not give you notice or pay you for the notice period, you should discuss the situation with your employer first. If your employer refuses to pay you what you are owed, you can contact the Fair Work Ombudsman to make a complaint.
In some cases, the Fair Work Ombudsman may be able to help you recover the money you are owed.
For more information, see the Final pay on the Fair Work Ombudsman website.
If you are not able to recover your final pay with the help of the Fair Work Ombudsman, you may need to start legal action against your employer to recover the money you are owed. Legal action must be started within six years of when the debt is owed to you. If you are in this situation, you should get legal advice.
For more information, see What if my entitlements are not paid? on the My problem is about section of our website.
How much notice do I have to give my employer if I resign?
You should check your award, agreement or contract to find out how much notice you must give your employer when you resign.
If you don't give the correct amount of notice, your employer may withhold money from you. Most awards say your employer can take one week's wage from your pay as long as it is not unreasonable, if:
- you do not give the correct amount of notice
- you are over 18.
The one week's wage does not include other entitlements owed to you like your annual leave.
For more information, see Final pay on the Fair Work Ombudsman website.
If your award, agreement or contract does not state any notice period you must give, you may be required to give your employer reasonable notice. Reasonable notice can take into account factors like your skills, seniority, salary, length of service, your age and the amount of time it will take for you to find a similar position.
If you are trying to work out what reasonable notice is in your circumstances you should get legal advice.
What is reasonable notice?
When there is no clear notice period of termination in your employment contract, a term of reasonable notice may be implied. However, determining an implied term of reasonable notice is complex.
Reasonable notice can take into account factors like your skills, seniority, salary, length of service, your age and the amount of time it will take for you to find a similar position.
For long serving, highly skilled, senior employees, reasonable notice may be up to 12 months. However, for short serving, junior, less skilled employees, reasonable notice may be much shorter.
If you are trying to work out what 'reasonable notice' is in your circumstances, you should get legal advice.
Do I need to work the full notice period if I resign?
If you resign from your job you should check your award, agreement or contract for what period of notice you must give. Your employer may ask you to work your full notice period or pay you in lieu of the notice period. If you leave early, and do not work your full notice period, your employer may in some circumstances start legal action against you to recover their loss.
If your employer agrees to you leaving early, or giving less notice, it is a good idea to get this in writing.
For more information, see Resignation & notice on the Fair Work Ombudsman website.
Can a potential employer withdraw my employment offer before I begin the role?
It depends on whether you have accepted the role or not.
If you have not accepted an offer yet, there is no legal obligation on you or the employer and you can both decide not to go ahead. If the employer decides not to go ahead, they must communicate the withdrawal to you. If the offer was in writing, it usually specifies how the withdrawal must be communicated, for example, that the offer may only be revoked by notice in writing.
If you have accepted an offer and the employer then withdraws it, you may have rights under your contract, for example, they may have to follow the terms of the termination notice period in your contract.
If the employer did not provide you with a contract of employment or you would like to seek compensation from the employer for withdrawing your employment offer, you should get legal advice.
What if I breach my contract of employment?
If your employer is alleging you have breached your contract of employment, you will need to get legal advice about your situation. Do not admit or agree to anything without speaking to a lawyer.
What if my employer breaches our employment contract?
If you believe your employer is breaching your employment contract, you should get legal advice.
What is a restraint of trade clause?
A restraint of trade clause is a term in an employment contract or business agreement that operates to stop or restrict someone from certain business activities, such as taking on clients for a period of time, or engaging in a certain business activity for a period of time or in a particular place.
If you have concerns about a restraint of trade clause, you should get legal advice.
Can a restraint of trade clause be enforced?
Restraint of trade clauses are usually only enforceable if they are considered to be reasonable, but what is reasonable may depend on the circumstances. If there is a dispute, the Court may consider:
- the nature of the restriction and what legitimate commercial interest the employer has in including it in the contract
- how broad the clause is
- what geographical area the clause covers and whether this area is necessary to protect the employers interest, and
- how long the restriction is in place.
If you have concerns about a restraint of trade clause that affects you, you should get legal advice.
Can my employer stop me from working for another organisation or starting my own business in the same industry?
Your employer may try to stop you from working for another organisation or starting your own business in the same industry if you have signed a contract agreeing to this.
Usually, your employer will be relying on a term in your contract that you have signed, called a restraint of trade clause. If the restrictions are not fair and reasonable, you may be able to challenge the restraint of trade clause.
You should get legal advice about your situation.
Does my employer have to give me a reference?
Your employer does not have a legal obligation to provide you with a reference.
You should also carefully consider who you nominate as a referee because they will be asked to give an honest opinion about you and your work performance. This means that they do not have to give you a good reference.
What if my referee does not give me a good reference?
If you have nominated a referee that you believe has not given you a good reference, you may want to consider nominating someone else. A referee will be asked to give an honest opinion about you and your work performance, so you should choose your referee carefully.
An unreasonably bad reference could be negligent or defamatory in some circumstances, but these are complex areas of law and you should get legal advice.
If your referee is saying things to others that you think are untrue, or that is affecting your reputation, you may need to get legal advice.
Can I claim defamation against my employer if they are saying false things about me?
If your employer says something negative and untrue about you to other people, you should get legal advice about your options. A lawyer may help you to resolve the situation without the need for court action.
If the dispute can't be resolved, a lawyer can advise you about whether you have a case for defamation. Court action for defamation can be complicated and expensive. If you lose, you may also have to pay any costs your employer incurs in dealing with the matter.
You have 12 months from when a statement was spoken or published to start legal action for defamation. Before starting action, you should get legal advice.
Does my employer need to give me a separation certificate?
If Centrelink requires a separation certificate before they will pay you Centrelink benefits, your employer must give you one. If your employer refuses to give you a certificate, you should discuss this with Centrelink directly.
Your award or agreement may also require your employer to provide you with a statement of service or similar document outlining the type of work that you were doing and the length of your employment.
What if a prospective employer contacts my previous employer without my permission?
Prospective employers should not contact previous employers without your permission. If they do, it is often difficult to do anything about it, but you should get legal advice about your circumstances.
Last updated: February 2024