Can an employer impose a blanket notice period (e.g. 4 or 12 weeks’ notice) on resigning employees? How does that interact with the statutory periods under the Fair Work Act 2009 (Cth) (FW Act)? What could an employer do if the employee does not give the required notice? Would the employer then have to give the corresponding notice when terminating employment?
Unlike notice for termination, the FW Act does not prescribe minimum notice requirements for resignation. Rather, the minimum notice period for an employee’s resignation is usually set out in an applicable modern award or enterprise agreement.
Typically, these include sliding scales of notice requirements, where the minimum amount of notice required to be given by a resigning employee is dependent on their period of continuous service (e.g. 1 week for less than 1 year of continuous service and 2 weeks for 1–3 years of continuous service).
Under an employment contract, an employer can impose a greater notice period on resigning employees than that specified in an applicable award or enterprise agreement.
It is therefore possible for employers to impose a blanket resignation notice period on all employees (regardless of their years of continuous service), so long as its practical operation would mean that all employees would be required to give notice that is equal to or greater than their minimum notice obligations set out in any award or enterprise agreement. As no statutory periods for notice of resignation are prescribed by the FW Act, this would have no other statutory implications.
If an employee does not provide sufficient notice of their resignation (as dictated by their employment contract, modern award or enterprise agreement), an employer is within its rights to refuse to accept the employee’s resignation. In such situations, the employer can tell the employee that they are legally obliged to comply with their set notice requirements and/or ask them to revise their employment end date. It might simply be the case that the employee is unaware of their notice obligations, but if the employee refuses to serve their required notice period, an employer may, depending on the circumstances:
- prosecute the employee for breaching a statutory requirement;
- seek damages for breach of contract; or
- make a termination payment deduction.
The required notice period for resignation is distinct from the required notice period for employment termination. The two notice periods do not need to be equivalent, which means that an employee who, for example, must give 6 weeks’ notice for their resignation is not necessarily entitled to 6 weeks’ notice for their dismissal. Subject to the minimum notice requirements under the FW Act, notice periods for employment termination may be set out in an employment contract, modern award or enterprise agreement.