We say four weeks' notice, he says five — who's right?

Q&A

We say four weeks' notice, he says five — who's right?

We've given notice to someone not covered under an award or agreement and gave him one month's pay in lieu. He says we owe him five weeks. What's the right amount?

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We've given notice to someone not covered under an award or agreement and gave him one month's pay in lieu. He says we owe him five weeks. What's the right amount?
 
This question was recently sent to our Ask an Expert service.
 
Q Our contracts of employment require either party to give one month’s notice when terminating employment. We recently gave notice to an employee in the form of one month’s pay in lieu of notice as their position had become redundant.
 
While the appropriate amount of redundancy pay was paid (the employee having served approximately seven years with the company), the employee claims he is entitled to five weeks’ pay, instead of one month’s pay.
 
Under what basis would five weeks’ notice apply and, if so, does it override the conditions of the contract of employment? The employee is not covered by a modern award or an enterprise agreement.
 
A The Fair Work Act (FWAct) (117.) provides that an employer must give an employee with more than five years continuous service a minimum of four weeks’ notice of termination.
 
Also, if the employee is more than 45 years of age and has been continuously employed for at least two years, the employee is entitled to an additional one week’s notice.
 
If this employee is older than 45, he’s entitled to five weeks’ notice (or payment in lieu), instead of one month. The FWAct will prevail over any provision of the contract of employment that is inconsistent with the minimum provisions of the FWAct.



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