Employers are sometimes confronted by employees who resign and provide minimal notice, giving an employer little time to find a replacement employee. How much notice of resignation are employees legally required to give?
 

Resignation notice periods

Under the Fair Work Act, employees are not required to give a minimum period of notice when resigning. The statutory minimum periods of notice of termination under the National Employment Standards only apply to notice given by an employer.

The required period of notice of termination to be given by an employee is determined by the applicable modern award, enterprise agreement or the terms of an employee’s contract of employment.

A notice period:

  • starts the day after an employee gives notice they want to end the employment

  • ends on the last day of employment.


Notice period based on service

Let's look at an example. An employee is covered under the Clerks – Private Sector Award 2020. Clause 41.1 of that award provides that the employee is required to provide the same period of notice of termination as is required by the employer under the National Employment Standards (NES).

The amount of notice of termination required to be given by the employee is based on the years of continuous service with the employer. This means the employee is required to give the following notice, based on years of continuous service with the employer:

  • one week’s notice — less than one year’s continuous service

  • two weeks’ notice — at least one year but less than three years’ continuous service

  • three weeks’ notice — at least three years but less than five years’ continuous service

  • four weeks’ notice — five years’ continuous service or more.

In this case, if the employee has been employed for less than one year, one week’s notice is the period of notice required under the award to be given by the employee.

However, if the employee’s service with the company is greater than one year, the award allows the employer to deduct the balance (in this case up to three weeks’ pay for five years’ service or more) from all monies due on termination, including the payment of any accrued annual leave.
 

What if an employee doesn’t give notice?

The standard termination clause in modern awards usually provides that where an employee fails to give the required period of notice, an employer can deduct the difference between the required notice and the notice given by the employee from the employee termination payment (ETP).

However, what’s allowable depends on the employee’s award or agreement. If you’re facing a situation where an employee hasn’t provided adequate notice, familiarise yourself with the relevant award, employment agreement or registered agreement to see what rules apply before deducting any amount from the ETP.