Australia: Reasonable notice on termination of employment - has it a future?


Termination of a contract of employment upon reasonable notice has long been regarded as part of the employment law landscape. It bridges the gap where the parties to the employment relationship have failed to specify in the contract of employment, the period of notice necessary to end the relationship without cause. In such circumstances, the principle was developed at common law that the contract of employment could be terminated on whatever period of notice was found to be reasonable. Notice periods as divined under common law principles have ranged up to 12 months Quinn v Jack Chia (Australia) Ltd (1992) 1 VR 567 (in New Zealand reasonable notice of 18 months has been awarded: Ogilvy & Mather (NZ) Ltd v Turner [1996] 1 NZLR 641).

The ability to terminate on reasonable notice will only be implied into an employment contract where it is necessary for business efficacy. In other words, where there exists a provision dealing with notice of termination (ie under an express term of the contract) there will be no requirement to "fill the gap" and no need to imply a term of reasonable notice to make the employment contract "work".

However debate has recently become enlivened over whether and the extent to which, award and minimum statutory requirements which concern notice periods, are properly to be regarded as filling the gap (thus in effect rendering reasonable notice claims obsolete).

This article looks at recent developments and the various and disparate approaches by courts and tribunals on this question.


Even before the Fair Work Act 2009 and the introduction of the modern award system, there were a number of decisions where claims for reasonable notice were refused because it was held that the existence of an award or statutory provision dealing with notice meant that there was no necessity to imply such a term. Such was the position in Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 67 IR 162, Elliott v Kodak Australasia Pty Ltd [2001] FCA 807; (2001) 108 IR 23, Holt v Musketts Timber Sales Pty Ltd [1994] FCA 137 and Australian National Hotels Pty Ltd v Jager [2000] TASSC 43; (2000) 9 Tas R 153.

It has also been held that the existence of a workplace agreement which dealt with notice meant that there was no necessity to imply a term of reasonable notice – see Hastings v JH Corporate Security Services Pty Ltd No SCGRG-00-436 [2000] SASC 216.

However there are some decisions where the existence of award provisions dealing with notice was not found to be a bar to a reasonable notice claim. See for example: Westen v Union Des Assurances De Paris (No 2) (1996) 88 IR 268 (considered later in this article). See also Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4; (1999) 94 IR 218 (where before the Full Bench of the Industrial Relations Court of Australia it was not suggested by the employer that the award notice provision had "any contractual or decisive significance" to the reasonable notice argument albeit it should be taken account of in determining what constituted reasonable notice).

In Stewart v Nickles [1999] FCA 888 the Federal Court decided that the statutory notice provisions under the then Workplace Relations Act 1996 did not displace an implied contractual provision for termination by reasonable notice.

There are a number of recent NSW Supreme Court decisions, where claims for reasonable notice have succeeded, without judicial consideration of whether an entitlement to a minimum statutory notice period (for example under the Fair Work Act 2009) operated to preclude such a claim (see for example Susanna Ma v Expeditors Pty Limited [2014] NSWSC 859 (See also Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWC 1550).

In 2013, the Full Court of the South Australian Supreme Court, reignited debate over the reasonable notice question in its decision in Brennan v Kangaroo Island [2013] SASCFC 151 (20 December 2013). Other decisions in this area have subsequently flowed from Brennan.


In Brennan the Full Court of the South Australian Supreme Court held that Ms Brennan (whose contract of employment did not deal with notice) was not entitled to reasonable notice because her employment was covered by an award which specified a period of notice required to terminate the employment. There was therefore no necessity to imply a term of reasonable notice into the employment contract.

The plaintiff in Brennan made a special leave application to the High Court which was determined in August 2014. The application was rejected by the High Court on the basis that the "Full Court's analysis is consistent with the statements in Byrne v Australian Airlines Ltd" (1995 185 CLR 410) and therefore there were not sufficient prospects of success to warrant a grant of special leave. Whilst the High Court's disposition of the special leave application does not represent a detailed examination of the authorities, it is arguably an indication of the High Court's present attitude on whether award notice periods "bridge the gap".

The decision by the High Court not to accede to the special leave application and revisit the reasonable notice issue has added to current uncertainty, and in the post Brennan world, competing decisions have continued to multiply.


In Westpac Banking Corporation v Wittenberg [2016] FCAFC 33 (14 March 2016) Buchanan J reviewed the authorities on reasonable notice. He referred to the decisions in Jager and Brennan and considered that they had been decided consistently with the following statement of principle by the majority of the High Court in Byrne:

"In the absence of any provision in the award and of any express provision in the contract of employment the law would regard it as a legal incident of the contract that it should be terminable upon reasonable notice or summarily for serious breach".

Whilst in Wittenberg it was decided that a term of reasonable notice could not be implied due to pre-existing contractual provisions dealing with notice, the decision may be considered as providing support for the proposition that statutory notice periods (Jager) and award provisions (Brennan) fill the gap and leave no room for implying a term of reasonable notice.


In Kuczmarski v Ascot Administration Pty Ltd [2016] SADC 65 (1 July 2016) the District Court of South Australia held that the Fair Work Act 2009 notice provisions "bridged the gap".

Mr Kuczmarski's employment was not covered by an award (he was the National HR Manager) and he did not have a written contract of employment. The only provisions dealing with notice were therefore those minimum periods of notice set out in section 117 of the Fair Work Act 2009.

Mr Kuczmarski's employment was terminated by his employer paying him 5 weeks' notice in lieu (the minimum stipulated by the Act). Mr Kuczmarski then brought a claim for damages on the basis that – given his seniority and length of service – a period of 12 to 18 months' notice would have constituted reasonable notice.

On behalf of Mr Kuczmarski, counsel sought to distinguish this case from Brennan. It was submitted that there was a fundamental difference between the provisions of the award that covered Ms Brennan and the provisions dealing with notice in the Fair Work Act 2009. In the former, the award stated a specific period of notice that an employer must give an employee to terminate their employment. Under the Fair Work Act 2009 the requirement was that the employer must give notice of at least those periods stated, in other words they were minimum requirements.

Judge Clayton was unpersuaded by these arguments and found that there was no material difference (in this context) between an award requiring a specific period of notice and the Fair Work Act 2009 setting a minimum notice period – the existence of either was fatal to a reasonable notice claim. The fact that s 117 of the Fair Work Act 2009 contained a period of notice (albeit a minimum period) meant that there was no "gap to fill" and therefore no necessity for an implied term of reasonable notice.

His Honour also accepted submissions from the employer to the effect that s117 of the Act displaces or precludes any implication by law or fact, of a term requiring reasonable notice. In particular, he accepted the employer's submission that by prescribing a minimum notice period, Parliament had recognised that the parties could expressly agree a longer notice period, but Parliament was to be taken to have intended to exclude the implied term of reasonable notice.

It is understood that Kuczmarski was appealed to the South Australian Supreme Court but that the appeal was discontinued in December 2016.


In McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 (30 August 2016) in the context of an adverse action, the Federal Circuit Court had cause to consider the potential impact of the notice provisions of s 117 of the Fair Work Act 2009 on the implication of a term of reasonable notice. Judge McNab declined to adopt the reasoning in Kuczarmarski and considered that s 117 of the Fair Work Act 2009 would not displace a right to reasonable notice, or in his words:

"I think the better view is that s.117 is in that part of the Act dealing with National Employment Standards and is intended to provide a minimum period only. It does not displace a right to reasonable notice when the contract of employment is silent on the question of notice. By paying or giving the minimum period of notice under s.117(2), the employer will have satisfied the National Employment Standard and not be liable for a claim of breach of those standards. However, it is strongly arguable that payment or provision of that notice will not necessarily satisfy a claim for reasonable notice."

"The proposition may be tested where the employment of two employees is terminated. Both are over 45 years of age. One has worked for 5 years in a mid-range role, the other has worked for 25 years and worked her or his way up on a high level role. Both are employed under contracts that make no provision for notice of termination. I doubt that parliament intended that both would receive the same period of notice of termination by the enactment of s.117(2) of the Act."

Whilst ultimately Judge McNab determined that it was not necessary to imply a term of reasonable notice into the employment contract due to the continued operation of the termination provision in the employment contract, his reasoning (whilst not binding) is at the very least, persuasive.


In Elwin v Edwards Motors Pty Ltd & Ors [2015] FCCA (24 February 2015) the Federal Circuit Court followed the principles in Brennan, Brackenbridge, Jager and Kodak and determined that s 117 of the Fair Work Act precluded a claim for reasonable notice. In Pappas v P & R Electrical Pty Ltd & Anor [2016] SADC 132 (4 November 2016) the District Court of South Australia referred to Brennan and Kuczmarski as authority for the proposition that reasonable notice is not required to fill the gap where the contract of employment does not provide for notice as s117 of the Fair Work Act 2009 establishes the employee's entitlement to notice.

The Full Bench of the Western Australian Relations Commission in Richards and Nicoletti [2016] WAIRC 00941 in a majority decision delivered on 22 December 2016 held that there was no room for implication of a term requiring reasonable notice to terminate an employment contract. In a powerful minority decision, Smith AP conducted a detailed analysis of case law to date, ultimately finding in favour of the position adopted in cases such as McGowan and Westen. In doing so she found that the purpose of s 117 of the Fair Work Act 2009 was to provide minimum periods of notice, and that such provisions did not exclude the operation of the right to reasonable notice.


In both Brennan (on appeal) and Kuczmarski reliance was placed on passages from the High Court decision in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. In that decision, attention was directed, amongst other things, to whether a provision in the Transport Workers (Airlines) Award 1988 - (cl 11(a), which stated that a dismissal could not be harsh, unjust or unreasonable) could be implied into the employee's contract of employment. The High Court found that clause 11 (a) of the award was not implied into the employment contract (as a matter of contract law) as it was unnecessary to do so for the effective operation of the contract.

In addressing this issue the High Court made the following statement:
" the answer must be that it is not necessary to imply a term in the form of cl 11(a) for the reasonable or effective operation of the contract of employment in all the circumstances. In the absence of any provision in the award and of any express provision in the contract of employment the law would regard it as a legal incident of the contract that it should be terminable upon reasonable notice or summarily for serious breach." (our emphasis)

As noted in Wittenberg, the above statement has been regarded as a general statement of legal principle and as authority for the proposition that it is unnecessary to imply a term of reasonable notice where an award so provides. It is suggested that the position may not be so clear cut.

First the High Court in Byrne did not discuss or review the doctrine of reasonable notice in detail. The claim it had to determine was not a claim based on reasonable notice. Indeed the majority stated (at para 28) that:
"The claim which the appellants advance is not a claim for wrongful dismissal based upon a failure to give reasonable notice. It is a claim for damages for loss of employment for, it would seem, an indefinite period, based upon the inability of their employer, because of cl 11(a), to terminate the employment relationship".

Secondly it is arguable that the principle which has been drawn from the above statement is not the only way such statement can be interpreted. Another interpretation of the above statement is that reasonable notice can still be a term implied into employment contracts unless an award specifically excludes the right to reasonable notice or the right to dismiss summarily (or where there is an express contractual provision dealing with these issues).

Thirdly it is arguable that the High Court stated (at para 27) that it was not going to (and did not) decide the reasonable notice issue because in the context of the case, it was not necessary to do so:
"Termination of employment in breach of cl 11(a) is, of course, a breach of the award, but since cl 11(a) is not, unless made so, a term of the contract, it is not a breach of contract. It is a different question whether a dismissal, if wrongful, otherwise amounts to a breach of contract sounding in damages. In the absence of anything to the contrary and putting to one side the provision in the award for notice, at common law a contract of employment for no set term is to be regarded as containing an implied term that the employer give reasonable notice of termination except in circumstances justifying summary dismissal(43). Clause 11(d) of the award prescribes periods of notice varying according to the length of service and the age of the employee. If that provision were not to preclude the implication of a term that reasonable notice be given, it might provide evidence of what constitutes reasonable notice at common law. Upon the basis of such an implied term, the appellants might possibly have been able to mount a claim for damages for wrongful dismissal because of the failure to give them the appropriate notice (44). But it is unnecessary for the purposes of these appeals to determine the point". (our emphasis)

The concluding sentence "But it is unnecessary for the purposes of these appeals to determine the point" appears to be directed towards the potential reasonable notice points that they outline. The court expressly stated that it was "putting to one side" the award notice provision. And by using the subjunctive ("If that provision were not to"), the court indicates that the subject matter is hypothetical - suggesting that the court is not deciding the point one way or another. In particular it is not deciding if the award provision precludes the implication of a term of reasonable notice (the inference being that the award notice provision might not have that effect).

While the paragraph above may suggest that the court might lean towards the award notice provision precluding a reasonable notice claim if it had to decide the point, it is suggested that it is reasonable to argue that the court expressly did not decide that point.

Fourthly if the majority in Byrne did not review the authorities on reasonable notice and did not make a determination on reasonable notice the following statement of the minority judges (McHugh and Gummow JJ) is particularly noteworthy. In deciding whether it was necessary to imply into the employment contract, clause 11(a) of the Award (which as noted above, dealt with dismissal), they said:
"Nor could it be said that the implication into the contract of employment of a term to the effect of cl 11(a) of the Award would be necessary for their reasonable or effective operation. In the absence of such a contractual provision, there would remain unaffected the entitlement of the employer at general law to terminate at will on giving reasonable notice and to dismiss summarily for misconduct. That this would be the case was accepted in the submissions of both sides to this Court. Thus, there would be no "gap" which it was necessary to fill by a provision such as cl 11(a).

Accordingly, we accept the submissions for the respondent that the term for which the appellants contend is not to be implied as a matter of business efficacy in its contracts of employment with the appellants." (our emphasis).

In other words, the minority judges took the view that the entitlement to dismiss on reasonable notice remained - despite the fact that another award provision (clause 11(d)) dealt with notice.

To conclude Byrne is a decision not directed to a consideration of the authorities on reasonable notice and its relationship to awards. To the extent to which the decision traversed this question it is suggested that it has not conclusively dealt with it.


We now turn to look at the alternative approach in Westen v Union des Assurances de Paris (No 2) (1996) 88 IR 268 (which came after the High Court decision in Byrne). In that decision, Madgwick J, sitting as the Industrial Relations Court of Australia, took the view that minimum notice provisions in an award did not limit the employee's right to reasonable notice.

In doing so he noted that the provisions of the Workplace Relations Act 1996 dealing with termination of employment, stated that their object was to give effect to the International Labour Organization's Termination of Employment Convention (to which Australia was a signatory).

The Convention provided at Article 11:
"A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period." (our emphasis)

Furthermore, s 170HA of the 1996 Act stated that any award that was inconsistent with the requirements of the Convention would not have effect to the extent of the inconsistency. Thus the award could not have the effect sought to be attributed to it by the employer.

Madgwick J noted, with reference to the relevant notice clause in the award:
"The clause does not say, nor does it necessarily imply, that the right of reasonable notice, for employees for whom such notice might be months longer than four weeks, is to be abolished or made inoperative. The award can have a sensible and reasonable operation if it is read as meaning that an employer's obligation to give reasonable notice is assumed and endures, but, reasonable or no, the employer must give the minimum periods of notice prescribed in the award."

Madgwick J considered that if an Act of Parliament was to reduce common law rights it needed to say so. Nothing in the relevant Act (Workplace Relations Act 1996) empowered the award to reduce the rights of certain employees.

As noted above this theme was echoed by Judge McNab in McGowan where he considered that s 117(2) of the Fair Work Act 2009 as part of the NES, is only intended to provide a minimum and not to displace a right to reasonable notice. A similar view was expressed in the minority decision of Smith AP in Richards.

It should be noted that in both Brennan and Kuczmarski the position in Westen was rejected.


Consideration of the relevance of and the extent, if any, to which legislative intention had in mind the abolition of the common law right to reasonable notice, should continue to play a significant role in the ongoing reasonable notice debate.

Whether notice provisions are expressed in terms of a minimum amount or are otherwise expressed, may also continue to be re-agitated as an issue. Whether notice provisions arise under an award or directly under statute, is we suspect, likely to exit the debate as a point of distinction.

It is suggested that further evaluation of the High Court decision in Byrne ought to play a significant part in any future superior court determination on this question.

The reasonable notice debate has a distance to run and although perhaps less likely, it should not come as a total surprise if states other than South Australia choose not to follow Brennan and Kuczmarski.

For further information please contact:

Richard Ottley, Partner
Phone: +61 2 9233 5544

Simon Obee, Associate
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.