At common law, it is only the wrongfulness, or unlawfulness, of a dismissal which allows a claim by an employee,

based on breach of the contract. The common law looks at how the contract was terminated and if it was terminated in
accordance with its terms, there is no issue of wrongfulness. In contract, legislative claims for remedies (reinstatement
and compensation) can be applicable to dismissal which are considered unfair, because they are unjust or
discriminatory or abuse workplace rights. To successfully make a legislation-based claim (21days), the employee
must prove that their dismissal satisfies specific legislative prerequisites. Case: New South Wales Cancer Council v
Sarfaty (1992) 44 IR 1 / McClelland North Ireland General Health Services Board (1957) 2 AII ER 129

Dismissal will not be wrongful if it Mutual Termination – The employment relationship can be brought to an end at
any time on the agreement of the parties. Defined / Fixed term contracts –come to their end upon expiry of the term.
Extensions are new contracts. Employment contracts are taken to be of an indefinite duration unless there is an
express term to the contrary. In the case of a project, the contract comes to an end upon completion of the project.
Case: Fisher v Edith Cowan University (1996) 70 IR 206 / Bunge (Australia) Pty Ltd v Mallard (1982) 41ALR 223.
Expressly Agreed Notice - Where the contract contains an express term as to notice, termination has to be in
accordance with that term unless the other party agrees to the different form of termination. Reasonable Notice –
Where parties have not agreed to a specific period of notice and the contract is of indefinite duration, a term allowing
for termination by reasonable notice will be implied. There are no prescriptive rules as to what is reasonable notice,
but a starting measure might be the required min notice provided in the application legislation or award. Section 117
of the fair work act provides that age, length of service, salary, custom, and status will all be relevant to determining
what period of notice is reasonable in the circumstances. Case: Quinn v Jack Chia Australia (1992) 1 VR 567.
Quantifying reasonable notice – factor can be listed to help in determine what might be reasonable notice are: the
nature of employee’s job/the responsibilities involved/the seniority of the position/the earning and the qualifications,
age and chance to obtaining further employment, service years of employment. Withdrawing notice – Once a notice
of termination is given by one party to the employment contract and the notice is accepted by the other, the person
who gave the notice cannot withdraw from it. Payment in lieu of notice (PIL) – will satisfy notice requirements of the
legislation (section 117 (2) (b)). It can compensate for breach of contract where employer has not given notice. The
fair work act 2009 (Cth) sets min notice periods for termination and allow employer to make a PIL of at least the same
amount
Summary dismissal - Instant dismissal involved no notice or PIL (the employee is dismissed on the spot without
notice or PIL). This is because the employer is, in effect, asserting the employer’s breach of the employment contract.
The employer can lawfully dismiss in a summary manner only where they have a justification for giving no notice or
PIL. Case: North v Television Corp Ltd (1976) 11 ALR 599/Laws v London Chronicle (Indicator Newspapers) Ltd
(1959) 2 AII ER 285. Fair Work regulations 2009. 1.07 (3) exempts from employer requirements of notice where the
employee is guilty of serious misconduct, a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment; b) conduct that causes serious and imminent risk to the health or safety of
a person; or the reputation, viability or profitability of the employer’s business.

Specific misconduct in the course of employment that will exclude the employer from the requirement of notice or
pay in lieu of notice is theft, fraud, assault, the employee being intoxicated at work or the employee refusing to carry
out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. Case: Kennelly
v Incited Ltd (1998) FCA 1470 Irrespective of the nature of the employment, serious misconduct, dishonesty, violence,
incompetence, offensive language and willful disobedience of lawful and reasonable instructions given by the
employee’s superiors are likely to warrant summary dismissal. Case: Clouston & Co Ltd v Corry (1904-1907) All ER
Rep 685 (valid ground) Misconduct outside employment / Justifying summary dismissal/ Discovery after dismissal /
Employer Provocation / Dismissal with payment / Dismissal without payment

CONSTRUCTIVE DISMISSAL - Where the employer is in serious breach of their contractual obligation, the employee
is entitled to leave the employment without giving the required notice. Employer may breach their duty of care. Duty to
pay breaches may also terminate the contract. A constructive dismissal at common law is not necessarily equivalent
to the type of forced resignation that is a prerequisite for an unfair dismissal application. Case: Hem v Cant (2007)
FCA 81
ABANDONMENT- can mean both the parties agree on termination on their relationship and have no further obligation
pursuant to it. Often, the term is used to denote the situation where an employee disappears or simply not turn up for
work. A prolonged absence from work in this context may not necessarily mean the employee has abandoned their
job. Case: Stanfield v Burgess and Associates Pty Ltd (1992) 42 IR 266
AUTOMATIC TERMINATION - Where the operation of law terminates a contract of employment, it is said to have
automatically terminated, without the need for either the employee or employer to do anything. This happens when a
contract is frustrated (eg: long term illness or injury, imprisonment and compulsory military service), because
performance become impossible. An example is death of the employee
CHANGE OF EMPLOYER - In line with the personal nature of the contract of employment, (transmission and contract
termination) the sale of the employer’s business can operate to dissolve the contract of employment. (Restructuring &
outsourcing) does not automatically terminate the contract of employment. Employees must consent to a transfer of