Resignation: do casual workers have to give notice?

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Resignation: do casual workers have to give notice?

Are long-term casual employees required to give notice when they resign?

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Is a long-term casual employee required to give notice when resigning?

This question was recently sent to our Ask an Expert service.
 
Q Our company employs a long-term casual employee who has been employed for more than 12 months and worked regular shifts. She is employed in an administrative role. The employee has advised she will be finishing work in two days’ time. Her immediate manager is demanding two weeks’ notice from the employee as prescribed by the National Employment Standards.

As the employee has been employed for a period greater than 12 months, should she provide the same appropriate period of notice as the employer under the National Employment Standards?
 
A Generally, the answer is no. The required period of notice of termination to be given by an employee upon their resignation is determined by the applicable modern award, enterprise agreement or the terms of the individual’s contract of employment.

Most modern awards require an employee to provide the same period of notice as that required by the employer – that is, the appropriate notice required under the National Employment Standards, although there is usually no requirement on an employee to give additional notice based on the age of the employee concerned.

In this case, the Clerks – Private Sector Award 2010 (cl 13.2) refers to the National Employment Standards in relation to the required notice of termination to be given by an employee to the employer.

Under the National Employment Standards, an employer is NOT required to provide a period of notice of termination to a casual employee. This would include a long-term casual employee. As the award refers to the minimum notice provisions under the Standards, a casual employee is not required to provide a period of notice to an employer upon resignation.
 
The terms of an individual’s contact of employment may require a period of notice be given by a casual employee, but it is not a requirement under the applicable modern award nor the National Employment Standards. 

Long-term casual employee

While the statutory minimum period of notice of termination provisions under the National Employment Standards does not apply to a ‘long-term casual employee’, this category of casual employee is usually able to access certain employment entitlements under the Fair Work Act.

This includes entitlements such as parental leave and unfair dismissal. An eligible casual employee is usually defined as a casual employee who has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment (more than 12 months for parental leave), and who would have a reasonable expectation of continued employment. 

Unfair dismissal

When calculating an employee’s relevant qualifying period of employment, periods of complying casual employment could be added to periods of full-time or part-time employment. The six-month qualifying period must end in dismissal but the Fair Work Act (s.384(2)(a)) suggests the possibility that the complying period of casual employment might be earlier provided the period of continuous service extends up to the point of dismissal or notice of dismissal.
 
The bottom line: Generally, a casual employee is not required to give a period of notice to an employer when resigning from their employment, unless otherwise prescribed by the applicable modern award, enterprise agreement or the terms of the individual’s contract of employment.
 

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