Written by
Ilyas Omari
Reviewed by
Ever scratched your head wondering if an employee’s resignation is legit? You’re not alone! In the wild world of workplace farewells, it’s crucial to know what flies and what flops.
As an employer, understanding the legal aspects of employee resignations is crucial for smooth workforce management. This article aims to address a common question: Can an employee file their resignation legally?
We’ll explore this topic in-depth, covering the legal framework surrounding resignations, the obligations employees have when resigning, and answers to other frequently asked questions.
Read along!
Can an employee quit without giving notice in Australia?
Employees can quit without providing notice. However, this is only legal under certain circumstances, for example, if they are a casual employee or if there are extenuating circumstances that are existing.
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What is the casual employee resignation notice period in Australia?
Employees who have been hired on a casual basis aren’t required to provide notice. Similarly, employers don’t have to provide notice to casual employees when they decide to terminate their employment.
Furthermore, as an employer, it’s important to know that casual employees aren’t entitled to paid leave. Therefore, if your casual employee resigns without notice, you won’t owe them money for any untaken leave.
You should be aware that there are certain circumstances where a casual employee may be required to provide notice of termination and be required to provide notice. For example, if their employment agreement or a registered agreement outlines that there is a requirement that notice has to be given.
Do employees have to provide notice during their probation period?
During probation periods, the notice period is usually one week long. As a result, your employee who is still on probation only needs to give you one week’s notice if they have chosen to resign.
Both full-time and part-time employees often begin their jobs on probation periods that generally last for 3 or 6 months. The purpose of probation periods is to allow both the employer and employee to determine whether the employee is a good fit for the job.
Do permanent employees have to provide notice when they resign?
Permanent employees are generally legally required to provide notice when resigning.
If an employee quits without notice, do I have to pay them?
As an employer, in certain circumstances, you don’t have to pay your employee if they have resigned without providing notice.
To determine whether you’re able to withhold the pay of an employee who has resigned without providing notice you will need to look at the agreement or award that applies to the employee.
In the event that the minimum amount of notice hasn’t been provided by the employee, you’ll still be required to pay the employee all their entitlements if their relevant award or agreement prohibits pay deductions.
What are the consequences of resignations without notice?
Consequences for employers
In the business world, resignations are common. However, when an employee resigns without providing notice this can be extremely inconvenient for an employer. This is because it doesn’t allow an employer to find a replacement, or undertake a proper handover, and the employee may have a lot of incomplete work that will have to be completed by other employees in the workplace.
Consequences for employees
Although it is generally not illegal for employees to resign without notice, there are still several consequences employees can face. This is well known to most employees, and they will provide adequate notice as a result.
Many employees are aware of this and will subsequently provide due notice. A significant consequence that employees may face is that employers are generally allowed to withhold money they owe an employee for resigning without providing notice. The amount that an employer is allowed to withhold is determined by what an employee would have earned if they had provided their employer with notice.
Furthermore, employers can also refuse an employee’s request to provide a reference letter or act as a referee on the basis of the employee failing to provide notice when resigning.
What obligations do employees have when resigning from their employment?
Employees are required to provide their employers with the minimum period of notice under the Fair Work Ombudsman’s National Employment Standards (NES).
It is important for permanent employees to understand they’re legally required to give their employers adequate notice. The NES applies to all employees covered by the national workplace relations system.
Where can an employee’s notice period be found?
According to the Australian Government’s Fair Work Ombudsman, an employee’s notice period can also be found in the following documents besides the NES:
- An employee’s award
- Employment agreement, or contract (though this is required to meet the minimum notice required of the award or registered agreement)
- Enterprise agreement
- Other registered agreement
- Workplace policy (though this is required to meet the minimum notice required of the award or registered agreement)
Which factors determine how much notice an employee has to provide when resigning?
The amount of notice an employee is required to give their employers is included in either the applicable modern award, the employee’s employment contract, enterprise agreements, and employment contracts
Modern Awards
Generally, the ‘Termination of Employment’ clause in an employee’s modern award will show that an employee’s notice period is calculated based on the employee’s length of employment. Notice periods are as follows:
- If an employee has worked for an employer for less than a year – The minimum notice period is one week
- If an employee has worked for an employer for between one to three years – The minimum notice period is two weeks
- If an employee has worked for an employer for between three to five years – The minimum notice period is three weeks
- If an employee has worked for an employer for between five years or more – The minimum period is four weeks
These are the same notice periods that an employer has to provide an employee when terminating their employment, according to the FairWork Ombudsman.
As an employee, you can use the Fair Work Notice Period calculator created by the Fair Work Ombudsman to calculate your notice period and find information about the minimum notice requirements. However, the length of notice required may vary depending on the terms contained in the applicable industrial instrument. The industrial instrument can be a federal industrial instrument, state industrial instrument, or non-industrial instrument.
Employment contracts
Employment contracts usually include clauses about how much notice is required on termination. For many full-time permanent positions, the notice period that is required to be provided is four weeks. However, this will differ depending on the arrangements that have been made between the employer and the employee.
Frequently Asked Questions (FAQs)
How Does An Employee Give Notice?
Employees can give notice of resignation either verbally or in writing, though written notice is preferred. If given verbally, employers must confirm the resignation in writing, as required by the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009.
If you have decided you want to resign from your current position, you should use our If you want a Letter of Resignation template and complete your letter of resignation in a matter of minutes.
What is a notice period?
Notice period is the time between an employee giving resignation notice (or receiving termination notice) and their last day of work. This period, applicable to both resignations and terminations, allows for task completion and handover preparation, ensuring a smooth transition as mandated by the Fair Work Act 2009 (Cth).
Conclusion
Although, as an employee, you might not always be required to provide a notice of resignation, it’s good practice to notify your employer about your resignation and to provide the minimum amount of notice to your employer.
This will ensure that you receive payment for working throughout your notice period and that you receive your leave entitlements. Additionally, it’s also the professional way to end your employment. If you’re an employee and you’re still unsure whether you can resign without notice, you should hire a lawyer for legal advice to avoid potential consequences.
Similarly, if you’re an employer and you want to determine whether your employee has legally resigned without notice, you should hire a lawyer for legal advice to determine whether you can take legal action or withhold their payments.
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