Lawpath Blog
  • Lawpath
  • Blog
  • Requirements for Valid Notice: Termination of Employment
Requirements for Valid Notice: Termination of Employment

Requirements for Valid Notice: Termination of Employment

You must provide valid notice if you wish to resign or terminate an employee. In this article we explore the requirements for valid notice.

3rd September 2021
Reading Time: 4 minutes

Think about resigning from your employment? Maybe you’re an employer and you wish to terminate a current employee. Well, this is the article for you! When you resign or terminate an employee, you must ensure you are giving the other party a reasonable amount of time to ‘tie up’ the employment before leaving. This is called the notice period. Our article takes you through the meaning of notice and most importantly, the requirements for valid notice.

What is Notice?

When you resign from a job, you a generally required to give notice to your employer that you will be leaving. So, notice refers to the period of time you must give your employer or employee, before terminating the employment relationship. Therefore, notice quite literally refers to the time giving between: (1) handing in your resignation and (2) your final day of work.

Do I have to give Notice?

Giving notice is an extremely important aspect of the employment relationship. The requirement to give notice represents professionality and fairness in the workplace. It also allows the employer to make some appropriate arrangements. These arrangements may relate to the payment of entitlements, such as annual leave or finding a suitable replacement.

However, if you choose to walk out of your job, your employer holds the authority to refuse the payment of any entitlements. Although it is not illegal for employees to walk out of a job, for many employees, the consequence of not receiving their leave entitlements is enough to urge them to provide due notice. Furthermore, leaving without living out your notice period can harm employment relationships, result in bad referrals, burn bridges and thus, have a negative overall impact.

The Requirements for Valid Notice

Now, when you give notice, whether you are an employer or employee, that notice must be valid or reasonable. The requirements for valid notice are provided for under section 117 of the Fair Work Act 2009 (Cth). Section 117 outlines that valid and reasonable notice should be provided to an employee who wishes to terminate their employment.

But, what is valid and reasonable notice? Valid and reasonable notice refers to few things, such as:

  • Contents of the Notice,
  • Delivery of the Notice and,
  • Amount of the Notice.

So, let’s explore each of these requirements for valid notice.

Content of the Notice

It is always best to provide your employer or employee with written notice. Under the Fair Work Act, the written notice should specify the date of the employees final working day, as well as the date the notice was given.

Delivery of the Notice

This is one of the requirements of valid notice that should come naturally. Section 117 of the Fair Work Act on also expresses how the written notice must be delivered or given to the employee. Thus, the notice may be provided to the employee by:

  1. Delivering it personally or,
  2. Leaving it at the employees last known address or,
  3. Sending it by pre-paid post to the employees last known address.

In most cases, the employer or employee will personally deliver the notice to the other party.

Amount of the Notice

Of course, the correct period of notice must be provided. Now, this is one of the trickiest requirements for valid notice. There seems to be a bit of confusion around finding the correct notice period. However, this difficulty only arises as there are a few things that must be considered before the correct amount of notice is determined. The best way to determine the correct notice period is to follow our steps below.

First, look to the Modern Award or Enterprise Agreement

You must ensure you are providing a notice period no less than the minimum period of notice. This period is located in your workplaces relevant modern award or enterprise agreement. This is the first thing to look at in determining the correct and reasonable notice period. At times, this minimum period of notice is sufficient, however this is not always the case. You must also look to the employment contract.

Second, look to the Employment Contract

Even if you are covered by a modern award or enterprise agreement, you should always look to the employment agreement. Does your employment agreement provide for a ‘reasonable’ period of notice? If the employment contract does state what the ‘reasonable’ notice period is, it is likely that this is the valid notice period.

What if Notice is absent from the Employment Contract?

Now, if the employment contract does not expressly state the reasonable notice period, then you must make an assessment of your employee. This assessment will inform what the reasonable notice period should be. This assessment should relate to the employees:

  • Age,
  • Position/title/duties,
  • Period of Service,
  • Remuneration.

This assessment will inform you about what a reasonable period of notice will be for that particular employee. For instance, if your employee is of mature age, has a long service period and held a position of seniority, it may be that they should receive a greater notice period. As an employer, it is important to be aware that at times, the Court has ruled that these types of employees should receive much greater period of notice than their relevant modern award. If you’re not sure about the length of notice you should be providing, you should seek the advice of an Employment Lawyer.

Key Takeaways

Notice is the period between (1) notifying an employer or employee of the desire to terminate the relationship and (2) the final day of employment. There are some important rules that must be followed regarding the requirements for valid notice. The number one rule being that the notice must be valid. Not only should the notice be written notice, but it must be correctly delivered to the other party. Furthermore, the length of the notice period must be a reasonable and valid length. Determining what will be the reasonable and valid length of notice can be a task. Thus, look to your relevant modern award or enterprise agreement, employment contract and/or make a reasonable assessment of the employee themselves.

Don’t know where to start?
Contact a Lawpath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

Author
Mai Sarkissian

Mai is a Digital Marketing Coordinator at Lawpath, working as part of the Content Team. She is in her final year of a Bachelor of Laws degree at the University of Wollongong. She is interested in Business Law and Employment Law.