How much notice must I give an employee?

Are you seeking to terminate an employee? Do you know how much notice you must give the employee?

These are questions regularly asked of us, along with best practices to avoid being on the receiving end of an unfair dismissal claim.

What is a notice of termination?

In short, a notice period allows an employee the opportunity to search for alternative employment, while still receiving payment of wages from their outgoing employer. All employees are entitled to receive some period of notice of their termination, unless they are casual employees, or their employment has been terminated on account of serious misconduct. [1]

How much notice must I give?

The first place to check is the employee’s contract of employment or Modern Award (for a list of Modern Awards). More often than not, the employee’s contract of employment or applicable Modern Award will tell you how much notice the employee is entitled to.

In the event there is no contract of employment or an applicable Modern Award, we can advise you on the appropriate award. The Fair Work Act sets out minimum notice periods for all Australian employees, with the amount of notice an employee is to be given dependent on the employee’s length of employment.[2] Remember, if the outgoing employee is 45 years of age or older, they are entitled to an extra week on top of what is provided in that section.[3]

Importantly, the periods of notice set out in this section are the absolute minimum allowed. A notice period clause in a contract of employment that provides for less notice than that provided by the Fair Work Act will not be legally enforceable. 

Does the employee have to work out their notice period in full?

In short, no. You can ask the employee to not attend the workplace at all during the notice period. However, keep in mind that you will still have to pay the employee’s wages for the entire notice period.

How can DSA Law help?

If you have an employment law issue or are being unfairly treated and believe you could benefit expert legal assistance, please Contact Us or one of our Employment Lawyers at DSA Law on (03) 8595 9580.

---

[1] Fair Work Act 2009 (Cth) s 123.

[2] Ibid s 117.

[3] Ibid.