Reasonable notice period can be greater than NES minimum

Q&A

Reasonable notice period can be greater than NES minimum

The Fair Work Act provides minimum periods of notice on termination for employees, but in certain cases ‘reasonable notice’ applies and a longer period of notice may be appropriate.

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The Fair Work Act 2009 provides minimum periods of notice on termination for employees but, in certain cases, ‘reasonable notice’ applies and a longer period of notice may be appropriate.
 
The question below was recently sent to WorkplaceInfo.
 
We have a long-term employee whose contract of employment does not provide a period of notice.
 
We have given her five weeks of written notice of termination, which is the required period of notice under the National Employment Standard (NES).
 
The employee has been employed for more than five years and is over 45 years of age.
 
The employee has subsequently approached our HR manager saying she has received legal advice stating she is entitled to ‘reasonable notice’, but without indicating what amount of notice would be regarded as ‘reasonable’.
 
We have never received a claim of ‘reasonable’ notice from an employee before.
 
Does the employee have a valid claim for a period of notice greater than the NES?
 
The appropriate period of notice of termination required to be given by an employer under s117 of the Fair Work Act is the legal minimum period required to be given by a national system employer. 
 
An employee may claim additional notice if the employment contract does not contain an agreed period of notice, or a ‘reasonable’ period of notice, although such a matter would need to be pursued through the relevant court (eg district court, supreme court, etc).
 
It would be argued that ‘reasonable notice’ is an implied condition of the contract of employment.
 
What is considered ‘reasonable’ notice would vary depending on the circumstances. Factors to be take into account include the employee’s:
  • age
  • length of service
  • remuneration level
  • seniority of position
  • prospects of alternative employment.
 
Taking such legal action could potentially involve considerable legal costs for both parties.
 
There is no guarantee of success on the employee’s part. The company would be advised to seek appropriate legal advice, if the employee insists on pursuing any claim for reasonable notice and the matter cannot be resolved by negotiation.
 
Source: Paul Munro, IR Consultant.
 
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