How much notice do you need to give when ending employment?
Getting notice wrong is one of the easiest mistakes to make
When a decision to end someone's employment has been made, most of the attention goes on the reason and the meeting. Notice often gets worked out at the last minute, usually from memory or from the last person who left. That is where small, avoidable errors creep in: the wrong number of weeks, a missed extra week, or a payment in lieu calculated on base pay only.
Here is how notice works for employers covered by the Fair Work system, and the points that most often go wrong.
The minimum notice under the National Employment Standards
Notice is part of the National Employment Standards (NES). The minimum period depends on how long the employee has been continuously employed with you at the time notice is given.
Continuous service | Minimum notice |
|---|---|
1 year or less | 1 week |
More than 1 year, up to 3 years | 2 weeks |
More than 3 years, up to 5 years | 3 weeks |
More than 5 years | 4 weeks |
The extra week most employers miss
If the employee is over 45 and has at least 2 years of continuous service when they receive notice, they are entitled to one additional week. So a 50 year old with six years of service needs 5 weeks, not 4.
Check the award, agreement and contract too
The NES is the floor, not the full answer. An award or enterprise agreement may contain its own notice terms, and many employment contracts promise more than the minimum. Where the contract gives a longer period, that is generally the period you need to honour. Before you calculate anything, read the employee's contract and the instrument that covers them.
Paying in lieu of notice
You do not have to have the employee work out their notice. You can pay them instead. The payment must be at the employee's full rate of pay, as if they had worked the notice period. That can include:
incentive payments and bonuses
loadings
monetary allowances
overtime or penalty rates they would have earned
other separately identifiable amounts
Paying base rate only for someone who regularly works penalty shifts or receives allowances is a common source of underpayment at the end of employment.
Who is not entitled to notice
The NES notice rules do not apply to every employee. The main exclusions are:
casual employees
employees engaged for a set period or a season, such as a genuine fixed term contract
employees dismissed for serious misconduct
trainees engaged for a set period or the length of a training arrangement
certain daily and weekly hire employees in building and construction and in the meat industry
Probation does not remove the right to notice. An employee who is let go during probation is still entitled to at least the NES minimum unless one of the exclusions applies.
Serious misconduct is a high bar
Dismissing without notice is only available for genuine serious misconduct, such as theft, fraud, assault or sexual harassment. If the conduct does not clearly meet that standard, or the process used to reach the decision was not fair, summary dismissal can be challenged. When in doubt, giving notice or paying in lieu is usually the safer course.
A quick checklist before you give notice
Confirm the employee's start date and calculate continuous service accurately.
Check their age and service for the extra week.
Read the contract and the award or agreement for longer notice terms.
If paying in lieu, calculate full pay, not just the base rate.
Put the notice period and final pay details in writing.
Notice is only one part of ending employment well. The reason, the process and the conversation matter just as much. Our 5-stage termination framework walks through the full process.
Related reading
This article is general information only. IndustrialHR does not provide legal advice.
