Notice of Termination by an Employer
The minimum notice period employers are required to provide when terminating employees is part of the National Employment Standards (NES) as provided for under the Fair Work Act 2009. The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract provision. The NES establishes the minimum notice period entitlement that an employer must give an employee when wishing to end their employment.
It also affirms the long-standing common law right of employers to effectively cease the relationship immediately by paying the employee in lieu of notice (in other words, not requiring the employee to work out the notice but paying them the notice period). Traditionally, payment in lieu occurred in situations where the employer was concerned that an employee might become less productive, be destructive in the workplace or in extreme situations, considered likely to engage in theft, sabotage or damage to the employer’s reputation.
The minimum notice periods the NES provides, based upon the employee’s length of continuous service, is detailed below:
Length of Service Period of Notice
One year or less One Week
More than 1 – 3 years Two Weeks
More than 3 – 5 years Three Weeks
More than 5 years Four Weeks
Where an employee has more than two years service and is aged over 45 years, they are entitled to an additional one week’s notice.
There are several notable classes of employees excluded from these provisions.
Employees engaged as Casuals (as defined, and as determined by the Fair Work Commission or relevant Court).
Employees engaged for a specified period of time, task or season (e.g. a fixed-term contract or a seasonal fruit picker).
Employees dismissed for reasons of serious misconduct (e.g. engaging in theft, fraud or assault). In such situations, employees are typically `summarily dismissed’ i.e. without notice/instantly.
Daily hire employees (as defined in the relevant award) in the building and construction industry or meat industry in connection with the slaughter of livestock.
Weekly hire employees in connection with the meat industry and whose termination depends on seasonal factors.
An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
The National Employment Standard only sets the minimum notice obligations under commonwealth law. An enterprise agreement, common law contract, or a court may impose a higher reasonable notice obligation subject to the individual circumstances.
For queries about notice periods on termination or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.