Minimum notice period on dismissal of non-award employees

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Minimum notice period on dismissal of non-award employees

Employers may be confused by the application of notice periods in relation to the termination of employment of non-award permanent employees (full-time and part-time) - like managerial and certain professional staff. Awards and registered agreements provide notice periods on termination for employees covered by those instruments - but what about those employees not covered by awards or agreements?

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Employers may be confused by the application of notice periods in relation to the termination of employment of non-award permanent employees (full-time and part-time) - like managerial and certain professional staff. Awards and registered agreements provide notice periods on termination for employees covered by those instruments - but what about those employees not covered by awards or agreements?

This recent question to our 'Ask an Expert' service is typical:

Question: 

'For non-award employees … is there a minimum notice period for termination that can be written into a contract/letter of employment for a permanent full time employee?

'I have recently been informed that after a year's service the minimum is 4 weeks - regardless of what is written in a contract.'

The inquirer was unfamiliar with the application of federal law in all parts of Australia. The answer is as follows:

Federal law applies

Section 170CM(2) of the Workplace Relations Act 1996 [Cth] provides for a period of notice that is required to be given by the employer when terminating the employee's employment. It is a minimum requirement that applies to all employees, including non-award employees. The scale of notice is based on the employee's continuous period of service. The scale is:

  • Not more than 1 year's service - At least 1 week's notice
  • More than 1 year & not more than 3 years service - 2 weeks notice
  • More than 3 years & not more than 5 years service - 3 weeks notice
  • More than 5 years service - 4 weeks notice

An employee who is terminated and is over 45 years of age and has completed at least 2 years continuous service with the employer is entitled to an additional week's notice.

A contract of employment may require a greater period of notice to be given by either party, but the amount of notice provided by the employer to the employee must be at least the equivalent of the above scale.

The above scale takes into account the obligation contained in the international convention to which Australia is a party - WORKPLACE RELATIONS ACT 1996 SCHEDULE 10 - Convention concerning termination of employment at the initiative of the employer.

Article 11

A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his [/her] employment during the notice period.'

Casuals etc excluded

It should be noted that reg 30B of the Workplace Relations Act excludes certain employees from the operations of Subdivision B of Division 3 Part VIA of the Act (which includes Section 170CM - 'Employer to give notice of termination'). This of course means 170CM will not apply to certain classes of employee - eg employees on probation, casuals fixed term contracts etc.

Impact of contracts of employment

Non-award/agreement employees will commonly have written contracts of employment and these contracts will often determine the appropriate period of notice on termination. If a period of notice is not provided or is proved to be inadequate then a reasonable period of notice applies - by agreement of the parties or by an order of a court or tribunal.

 

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