What to do if an Employee gives 3, 4 , 5 or even 6 Months’ Notice of Termination

Posted on 14/09/2024 at 1:53 pm

By admin

What can an employer do if an Employee gives 3, 4 , 5 or even 6 Months’ Notice of Termination?

Well, if you have an employment agreement (EA) whereby the notice period is inflexible (i.e. no minimum notice period for an employee) then they are proposing a change to the agreed EA. In this instance its likely that does not have to be accepted by the ER. For example lets say the EA wording is similar to this:

S # 1 Under the Fair Work Act 2009 the employer may terminate your employment at any time by providing you with notice in writing in accordance with this table:
# table
If you (employee) wish to terminate your employment you are required to also provide the employer with prior notice in accordance with the table at S # above.

However, a word of caution – the NES states this at (s)118:
Modern awards and enterprise agreements may provide for notice of termination by employees. A modern award or enterprise agreement may include terms specifying the period of notice an employee must give in order to terminate his or her employment.

And for example: in the Clerks Award 2020 it states:
An employee must give the employer notice of termination in accordance with Table 8—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.

Notice it states,” Period of notice of at least the period”.

So if the EEs underlying Award states “at least the period” then giving more than 4 weeks i.e. 3 months is likely to be seen as “acceptable”.

So one solution is to tell the EE that you would prefer say 4 weeks’ notice as he or she may change there mind during the proposed long, say 3 months’ notice period and after you have advertised, shortlisted, interviewed and selected a replacement candidate. This is a situation one doesn’t really want to encounter . So if the employee says “NO and I am 100% leaving in 3 months” then – Business as usual. If performance slows during the extended notice period then – do as you always do.

Finally, If the employee is requesting that 3, 4, 5 or even 6 months’ notice prevails and the resigning employee has confirmed that they will be definitely leaving at the end of the extended notice period given, then look at it this as a benefit. You now have an extended period of notice to find a suitable replacement and once found – the new starter is likely to get a good handover if the person/role warrants that.

Paul Marshall

Partner | HR Chief | FCPHR

With decades of Business and HR experience a HR Pro, corporate trainer, author and a welcomed and trusted business partner with commercial awareness and  expertise in people, performance and HR capabilities .

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