Can An Employee Resign Without Notice?
So you haven’t heard back from your employee for a week. Little did you know your employee actually resigned without notice. What happens next?
There’s an employee acting strangely at work. They have become suspiciously quiet, and packed almost all of their belongings away into a box. Suddenly your mind begins to piece together different events over the past week. You remember overhearing his conversation at the water cooler. He mentioned something about an offer and an opportunity to travel around the world. Then everything begins to make sense. Your employee left the business without notifying you, and you’re absolutely certain he will never return.
If you require advice on how to manage employment matters in your business, LawPath recommends getting in touch with an employment lawyer.
Is It Legal For An Employee To Resign Without Giving Notice?
It is common in business for employees to move on. When an employee resigns on the spot, there is little time for an employer to make preparations, such as ensuring all their work is finished or handed over, or finding a replacement.
It is not illegal for employees to resign without notice, but there are consequences employees will face depending on the employer. Under the relevant Modern Award that applies to an employer’s business, the employer is entitled to withhold any money owed to the employee. The amount of money is determined by an amount the employee would have earned had they provided the employer with notice.
To find out what Modern Award applies to your role and industry, you can check out the FWO’s three step form Find My Award.
It is so important for employees to understand they are legally obliged to give their employers adequate notice. This means employees are required to provide their employers with the minimum period of notice under the Fair Work Ombudsman’s National Employment Standards (NES). Basically, the NES applies to all employees covered by the national workplace relations system. Be aware the NES may require an employee to give an additional weeks’ notice if he or she is over 45 years old. Aside from the NES, the minimum period of notice can also be found in:
- An employee’s award; or
- Employment contract; or
- Enterprise agreement; or
- Other registered agreement; or
- A ‘Termination of Employment’ clause in a Modern Award.
Generally, the ‘Termination of Employment’ clause in a Modern Award will show you how the period of notice is calculated based on the employee’s length of employment. If the employee has worked for an employer for:
- Less than a year – The minimum notice period is one week.
- Between one to three years – The minimum notice period is two weeks.
- Between three to five years – The minimum notice period is three weeks.
- Five years or more – The minimum period is four weeks.
The FWO has a Notice and Redundancy Calculator you can use to calculate notice and find information about the minimum notice requirements.
However, the length of notice required to be given may vary depending on the provision contained in the applicable industrial instrument. The industrial instrument can be a federal industrial instrument, state industrial instrument or non-industrial instrument.
If you need advice or assistance about what Modern Award or industrial instrument applies to your employees, it is recommended you get in touch with an experienced employment lawyer.
How Does An Employee Give Notice?
There are two ways for an employee to give notice:
- Verbally – An employee can resign from their job verbally because they are not legally required to give notice in writing. If the employee chooses to resign verbally, then the employer should follow up by confirming the resignation in writing. If this is not done, misunderstandings can arise. Also, the Fair Work Act 2009 (Cth) requires employers to keep records of when employees leaves the business, including information about who terminated their employment and the details of how it took place.
- Writing – Employees can hand in a Letter of Resignation. You can easily create a Letter of Resignation with LawPath in under 5 minutes. You can also check out our previous guide How To Write A Resignation Letter for the basics on how to write a letter.
Overall, it is good practice for employees to notify their employer about their resignation, and give the minimum amount of notice to their employer. Once notice is given it will start at that moment until the employee’s last day of employment.
Want to learn more? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents, obtaining a fixed-fee quote from our largest online network of expert lawyers or to get answers to your legal questions.
Fiona is a Paralegal working in our content team which aims to provide free legal guides to facilitate public access to legal resources. With an interest in information, media, consumer and employment law, her primary focus is on how technology will affect the future of the legal industry.