Section 117 of the Fair Work Act requires employers to give employees reasonable notice, when terminating their employment. The section sets out the minimum period of notice which must be given. The minimum period will depend on the length of the employee’s continuous service, with the employer. If an employee has been employed for more than five years, then the employer must give the employee a minimum of four weeks’ notice.
How does section 117 apply when there is an employment contract without a notice provision?
In McGowan v Direct Mail and Marketing Pty Ltd[1] the Federal Circuit Court noted that:
- section 117 provides a minimum period only, and it does not displace a right to reasonable notice when an employment contract does not contain a provision regarding notice
- provided the minimum notice period under section 117 is given, the employer will have satisfied the National Employment Standards
- even if an employer has satisfied the National Employment Standards, they may not have satisfied a claim for reasonable notice
- reasonable notice, when there is no employment contract provision relating to notice, will depend on the period of employment and the level of the employee’s role
- an employee, who has worked for 25 years and worked their way up to a high level role, will require a longer period of notice than employee who has only worked 5 years in a mid-range role
Tips for Employers
Employers should:
- ensure that their employment contracts contain a provision relating to the notice period which must be given when terminating employment
- seek advice from an employment lawyer in relation to reasonable notice and your employer obligations under employment law
- introduce policies within the workplace which aim to reduce the risk of terminating employment without enough notice
To read the Federal Circuit Court Judgement click here.(link is external)
Questions/Assistance
If you have any questions in relation to this article or if you are seeking employment law advice on your employer obligations under the Fair Work Act, please feel free to speak with or email one of our specialist employment lawyers on (02) 9635 7966 or info@matthewsfolbigg.com.au
DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant workplace law.
[1] [2016] FCCA 2227.
