Notice periods: When it all comes to an end

 

How should notice be given?

Employers

The Fair Work Act 2009 requires an employer to give an employee notice of their termination in writing. Failure to do this is a breach of the Act, but doesn’t necessarily mean the termination hasn’t been effected.

The written notice may be given personally. Alternatively, it can be left at or mailed to the employee’s last known address.

At REEF, we discourage providing written notice by way of email or text message (except in unusual circumstances). But if you believe there’s no reasonable alternative, please call the REEF Helpline on 1300 616 170 before sending the email or text message and talk to one of our Workplace Relations Advisors.

Employees

Notice may be given verbally or in writing.

If an employee verbally resigns, it’s prudent to obtain written confirmation. This helps to avoid a ‘heat of the moment’ decision that one or both of you may later regret.

How much notice must be given?

Employers

You must provide the minimum period of notice prescribed by the Fair Work Act. This period is calculated based on the length of service of the employee and their age.
 

Length of continuous service	Minimum period of notice
Less than 1 year	1 week
Between 1 and 3 years	2 weeks
Between 3 and 5 years	3 weeks
More than 5 years	4 weeks
Employees over 45 years old who have completed at least 2 years of service when they receive notice are given an additional week of notice.

  

Of course, these notice periods will not apply in circumstances where the employee is being terminated due to serious and wilful misconduct or where a fixed-term contract applies.

Employees

Where an employee wants to bring their employment to an end, the minimum notice prescribed under the award or in their contract of employment must be given.

For employees under the Real Estate Industry Award, the minimum period of notice they must give is one week or any longer period agreed by the employer and employee. This provision is currently under review by the Fair Work Commission, so it’s possible it may change in the near future.

For employees under the Clerks – Private Sector Award, the minimum period of notice they must give is as set out in the table above.

Where the employee fails to provide the required minimum period of notice, there’s a possibility to withhold from monies due to them on termination an amount to offset the notice not given.

 

What is 'pay-in-lieu of notice'?

When terminating an employee’s employment, it’s common for employers to decide it’s best for the employee to leave immediately rather than work out their minimum notice period. In such circumstances, the employee is entitled to be paid as if they’re actually working. This is called ‘pay-in-lieu’.

 

Can notice be withdrawn?

The answer to this question will generally be “no”, however there are occasional situations where an employee may seek to withdraw their notice of termination claiming it was a ‘heat of the moment’ decision. If this situation arises, please call the REEF Helpline on 1300 616 170 for guidance about how to respond.

 

Call REEF

If you have questions about terminating an employee and minimum notice periods, call the REEF Helpline on 1300 616 170. Our team of experienced Workplace Relations Advisors is on hand to help.