By Professor Andrew Stewart, Legal Consultant and Shauna Roeger, Law Clerk
It is generally accepted that where a contract of employment has no agreed duration and makes no provision for termination, the common law will imply a term that the contract may be terminated on the giving of ‘reasonable notice’.
Over the last two decades, this position has been supported by a number of higher court decisions. However, a recent decision of the South Australian District Court, Kuczmarski v Ascot Administration P/L [2016] SADC 65 (Kuczmarski), has thrown into doubt the correctness of this view. In this case, Judge Clayton held that the term of reasonable notice on termination was not implied into an employment contract where section 117 of the Fair Work Act 2009 (Cth) (FW Act) applies. Shauna Roeger, Law Clerk, and Professor Andrew Stewart, Legal Consultant, explain this case and its implications for employers.
