Resignation and Notice Periods
Notice Periods – What is required?
The applicable modern award and/or contract of employment should provide the notice period an employee must give when resigning from their employment. For example, Clause 13 of the Clerks Private Award 2010 states that an employee is required to provide the same notice as the employer, except that there are no requirements to provide additional notice based on the age of the employee.
Not enough notice?
Where an employee fails to provide the required notice, consideration must be given to the award or contract of the employment to determine whether the employer can take any action against the employee in relation to the notice not provided.
For example, Clause 13 of the Clerks Private Award 2010 provides that if an employee fails to give notice, the employer may withhold the value of the notice not given from any amount to the employee on termination. The amount deducted must not exceed the amount the employee would have been paid under this award in respect of the period of notice required. For example, if Lucy was required to provide 3 weeks' notice, but only provided 1 week, the employer may only withhold the value of 2 weeks' notice (i.e. notice not provided). Further, in the instance where Lucy's contract requires 3 months notice, and she only gives 1 weeks notice, the employer cannot withhold the full 3 months notice. The amount that can be withheld can only be the notice period required under the National Employment Standards.
For non-award covered employees, the National Employment Standards does not allow an employer to withhold notice not given.
Too much notice?
Where an employee provides more notice than required, an employer can either accept the longer notice provided, or reject it.
In the first instance, employers need to read and understand the terms of the employee's resignation. This is important because the terms may not be reasonable or acceptable for the employer.
As a practical example, Shane provides 2 months notice and indicates he will work out the notice. By accepting the notice Shane provides, where the employer does not want him in the workplace for the next 2 months, the employer may be responsible for paying the (longer than necessary) 2 months notice in lieu of Shane working it. The employer can then enter into discussions with Shane to highlight the actual notice period required and that the resignation is accepted on the basis of the actual notice period.
By doing this the employer is notifying the employee that the employer does not want to accept the longer notice period and that the employee should shorten the notice period to the required length (eg in accordance with the industrial instrument and legislation). This revised resignation should be done in writing to avoid confusion. If an employer does not accept the longer notice period, they are essentially rejecting the employee's resignation on its initial terms, and the employee may retract their resignation, only to submit it at a later date with the correct, shorter notice period.
For further information on notice periods please contact Kelly Langdon on 07 3218 3900 or Kelly.Langdon@hanrickcurran.com.au
This article was published in the Spring 2013 Horizon. For a pdf version of the newsletter please click here.