Employment Rights in Australia: Notice Periods, Unfair Dismissal and Standing Redundancy Claims

This guide explains the minimum notice and redundancy pay available under the National Employment Standards, when a redundancy may become an unfair dismissal, and how employers must fund superannuation. It also sets out the eligibility rules, filing deadline and Payday Super requirements relevant to those issues.

Minimum notice periods

Under the National Employment Standards, the minimum notice period depends on how long the employee has worked for the employer:

• Less than 1 year: 1 week’s notice.
• 1 year to less than 3 years: 2 weeks’ notice.
• 3 years to less than 5 years: 3 weeks’ notice.
• 5 years or more: 4 weeks’ notice.

An employee aged 45 or over who has at least 2 years of service when notice is given receives one extra week of notice.

These are minimum periods, not necessarily the full notice period required in every employment arrangement.

Pay in lieu and longer notice terms

An employer may pay in lieu of notice instead of requiring the employee to work through the notice period. The employment can end immediately, without advance notice, provided the employer pays the wages corresponding to the applicable notice period.

Where an employee is entitled to redundancy pay, that payment is separate from the notice entitlement. The employee may receive redundancy pay and work the notice period, or choose pay in lieu of that notice.

Where an award, contract or enterprise agreement provides a longer notice period, the longer period applies instead of the National Employment Standards minimum. A payment in lieu of notice corresponds to that longer applicable period.

Redundancy pay and exclusions

Redundancy generally means that a position no longer needs to be performed by anyone. It does not include ordinary and customary turnover of staff. Redundancy may also be described as retrenchment or severance pay.

The minimum redundancy pay depends on the employee’s service:

• Less than 1 year: no redundancy pay.
• 1 year to less than 2 years: 4 weeks’ pay.
• 2 years to less than 3 years: 6 weeks’ pay.
• 3 years to less than 4 years: 7 weeks’ pay.
• 4 years to less than 5 years: 8 weeks’ pay.
• 5 years to less than 6 years: 10 weeks’ pay.
• 6 years to less than 7 years: 11 weeks’ pay.
• 7 years to less than 8 years: 13 weeks’ pay.
• 8 years to less than 9 years: 14 weeks’ pay.
• 9 years to less than 10 years: 16 weeks’ pay.
• 10 years or more: 12 weeks’ pay.

The pay period used to calculate redundancy pay is determined by the employee’s pay guide, award or enterprise agreement.

Redundancy pay does not apply to certain employees, including:

• Employees who have worked for the employer for less than 12 months.
• Employees in short-term or seasonal employment.
• Employees dismissed for serious misconduct.
• Most casual employees, although long-term casual employees engaged on a regular and systematic basis are excepted.
• Trainees and apprentices.
• Most employees of a small business covered by the Small Business Fair Dismissal Code.

Genuine redundancy and consultation

A genuine redundancy is not an unfair dismissal merely because the employee’s position has been eliminated. Redundancy itself is not unlawful.

However, the consultation process is also important. A genuine redundancy carried out without consultation can be challenged as an unfair dismissal. Whether the position is genuinely no longer required and whether affected employees were consulted are therefore separate questions that must be considered.

Unfair dismissal eligibility and deadlines

Unfair dismissal is when an employee is dismissed in a way that is harsh, unjust or unreasonable. The Fair Work Commission decides unfair dismissal claims and considers matters such as:

• Whether the employer had a valid reason for the dismissal.
• Whether an employee dismissed for underperformance was told the reason and given an opportunity to respond.
• Whether the employee had previously been warned about their performance.
• Any other relevant factors.

The Fair Work Ombudsman does not investigate unfair dismissal complaints. Instead, an eligible employee must apply to the Fair Work Commission within 21 days of the dismissal.

To be eligible, the employee must:

• Have worked for that employer for at least 6 months, or at least 12 months if the employer is a small business.
• Be covered by the national workplace relations system.
• Be covered by an award or enterprise agreement, or earn less than the high income threshold.

A small business employer has fewer than 15 employees at a particular time. An employer with 15 or more employees at that time is no longer a small business employer. Employees of associated entities are included when counting employees. Casual employees are not included unless they are engaged on a regular and systematic basis.

The Small Business Fair Dismissal Code applies to small business employers. Following its process can help an employer defend an unfair dismissal claim before the Commission. The Commission may resolve a claim through conciliation or a formal hearing and then make a decision.

Employer super guarantee and Payday Super

Under the superannuation guarantee, an employer must contribute 12% of an eligible employee’s qualifying earnings. The guarantee applies to employees who are over 18, or under 18 and work over 30 hours a week.

Eligible coverage includes:

• Full-time, part-time and casual employees.
• Independent contractors paid mainly for their labour.
• Temporary residents.

From 1 July 2026, Payday Super requires employers to calculate, pay and report superannuation for each payday. The contribution must be paid into the employee’s nominated superannuation fund.

For the 2026–27 year, the maximum contribution base is AUD $270,830 annually. The employer is not required to contribute superannuation on the part of an employee’s earnings above that limit.

The nominated fund must receive the payment within 7 business days from payday. In certain circumstances, this period extends to 20 business days, including an employer’s first contribution to a fund or a contribution for a new employee.

If an employer does not pay superannuation on time, the employer will be subject to the super guarantee charge. Late payment may also breach the Fair Work Act or an applicable award or enterprise agreement.

For unpaid superannuation, the ATO provides an “Unpaid super from your employer” process, and super-related enquiries can be made on 13 10 20. Unless the ATO has already started proceedings concerning that super, most employees covered by the National Employment Standards can seek recovery through court action under the Fair Work Act. An award or enterprise agreement may also provide additional superannuation terms.

The NES superannuation entitlement does not apply to employees of certain state-based employers that are otherwise within the national workplace relations system. These include sole traders, partnerships and other unincorporated entities in NSW, South Australia, Queensland, Tasmania and Victoria; Victorian non-trading corporations; the Tasmanian public sector; and local government. These employees may still have superannuation rights under the super guarantee or an award or registered agreement.

This is general legal information, not advice on your situation. A qualified lawyer should assess your individual circumstances.