Resignation Q&A

How much notice of resignation does an employee have to give?

Full-time and part-time employees

The National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act) only contain minimum periods of notice for termination by the employer, not resignation.

Full-time or part-time employees covered by a modern award or enterprise agreement will usually have minimum periods of notice of resignation that they need to comply with. If there is no applicable award or enterprise agreement, the period of notice for resignation may be set by the employment contract.

Awards

Most modern awards provide periods of notice of resignation based on the length of the employee’s employment. Notice of resignation requirements in awards can vary, so it is important that employers and employees check the applicable award to determine how much notice of resignation is required.

Enterprise agreements and employment contracts

Enterprise agreements and employment contracts will usually include a clause specifying the notice period for resignation.

There is no “standard” resignation notice period for enterprise agreements or employment contracts, so it is important to check the agreement or contract to identify the notice requirements that apply in the specific circumstances.

Casual employees

Casual employees are generally not required to provide notice to their employer when they are resigning from employment however, there may be notice requirements in an employment contract which should be complied with.

What if an employee gives less than the minimum notice?

If an award applies

Awards allow employers to deduct an amount from an employee’s termination pay in some cases where an employee fails to provide the minimum notice of resignation.

There are certain limitations on a deduction in this situation, including:

• The employer cannot make a deduction from the termination pay of an employee who is aged under 18.
• The amount of the deduction is limited to one week’s pay.
• A deduction cannot be made if the employer agreed to the shorter notice period.
• The deduction must be reasonable in the circumstances.

Employers should always check whether the award permits a deduction in the particular circumstances and should seek professional advice before making a deduction, as there can be significant penalties for unlawful deductions.

If an award does not apply

If an award does not apply (e.g. because an enterprise agreement applies instead, or because the employee’s role is not covered by an award or enterprise agreement), generally an employer is not permitted to make a deduction from an employee’s final pay because of a failure by an employee to provide the minimum notice of resignation.

An employer may be able to seek damages for breach of contract from an employee who fails to provide the minimum notice of resignation required by their contract of employment.

Penalties apply for unauthorised deductions

There are limited situations in which deductions from an employee’s pay are permitted. Penalties can apply where an employer deducts an amount from an employee’s pay in breach of the FW Act.

Can an employee withdraw their resignation?

Generally, an employee can only withdraw their resignation with their employer’s agreement.

Can an employer refuse to accept an employee’s resignation?

An employer cannot refuse to accept a resignation. The employee is entitled to end their employment and cannot be forced by their employer to continue in employment against their will.

Key lessons for employers and employees

• Employers and employees should always check the notice requirements for resignation in the relevant award, enterprise agreement or employment contract before resigning or agreeing to accept a period of notice. There can be serious consequences for both employers and employees failing to comply with resignation obligations.
• Consultation and communication are key. It is always preferable to resolve any issues about notice of resignation by discussion and agreement between the employer and employee if possible.
• If an employer or employee is in doubt about any aspect of a resignation, they should seek advice or guidance from an employment law expert or the Fair Work Ombudsman.