Quick Summary
Quick Summary
- The National Employment Standards (s.117 of the Fair Work Act 2009) set minimum notice periods from 1 to 5 weeks based on an employee’s years of continuous service.
- Employees aged 45 or over with at least 2 years of service are entitled to an additional 1 week of notice on top of the base period.
- Employers can pay out the notice period (payment in lieu) or require the employee to work through it, but cannot simply skip notice without consequence.
- Serious misconduct allows dismissal without notice, but the threshold is high and employers must document their reasoning.
- Casual employees are not entitled to notice under the NES, though employment contracts or modern awards may require it.
When you decide to terminate an employee, one of the first questions is: how much notice do I have to give? Under the National Employment Standards (NES) in section 117 of the Fair Work Act 2009, the minimum notice period ranges from 1 to 5 weeks depending on the employee’s years of continuous service and their age. Getting this wrong is one of the most common reasons employers face unfair dismissal claims at the Fair Work Commission.
This guide covers the minimum notice periods, who they apply to, the extra week for employees over 45, when you can dismiss without notice, and how notice interacts with payment in lieu, redundancy, probation, casual employment, and resignations.
Fair Work Act Minimum Notice Period
The NES minimum notice periods under s.117 apply to all permanent full-time and part-time employees. The periods are fixed by legislation and cannot be reduced by contract:
| Period of continuous service | Minimum notice period |
|---|---|
| Less than 1 year | 1 week |
| 1 to 3 years | 2 weeks |
| 3 to 5 years | 3 weeks |
| 5 years or more | 4 weeks |
Plus an additional 1 week if the employee is 45 or older with at least 2 years of continuous service. A 7-year employee aged 47 is entitled to 5 weeks (4 base + 1 age-related). See the Fair Work Act 2009 on legislation.gov.au and the Fair Work Ombudsman notice period guide.
Fair Work Notice Period for Employees: Who Is Covered?
The NES notice periods apply to full-time, part-time, and fixed-term employees terminated early. They do not apply to casuals, serious misconduct dismissals, or seasonal/project-based employees whose work has ended. A contract or award can require more notice, but never less.
Notice Period for Resignation Fair Work
The NES notice periods apply to employer-initiated termination. Employee resignation notice is set by the contract, award, or agreement. If silent, courts consider 1-2 weeks reasonable for junior staff and 2-4 weeks for senior employees. You can deduct from final pay for missing notice only if the contract allows it. See our employment contracts for employers page.
⚠️ The 45-and-over rule catches employers off guard
If your employee is 45 or older and has worked for you for at least 2 years, you must give them an extra week of notice on top of the base period. A 7-year employee aged 47 is entitled to 5 weeks of notice (4 base weeks + 1 age-related week), not 4. Failing to account for this is one of the most common notice period mistakes employers make.
Key Takeaways
Key Takeaways for Employers
- ✓Minimum notice: 1 week (under 1 year of service), 2 weeks (1-3 years), 3 weeks (3-5 years), 4 weeks (5+ years)
- ✓Add 1 extra week if the employee is 45+ and has 2+ years of continuous service
- ✓Payment in lieu of notice is allowed, but you must pay the full amount the employee would have earned
- ✓Notice periods apply to redundancy dismissals in the same way as other terminations
- ✓Serious misconduct dismissals do not require notice, but the bar is high and documentation is essential
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Fair Work Notice Period for Redundancy
Redundancy is a termination, so the same NES notice periods apply: 1 to 5 weeks depending on service length and age. On top of notice, eligible employees with at least 1 year of service are entitled to redundancy pay (severance) under s.119, ranging from 4 weeks (1-2 years) to 16 weeks (10+ years). Small businesses (under 15 employees) are exempt from redundancy pay but must still give correct notice. For more, see our termination of employment guide.
Fair Work Notice Period for Casual Employees
Casual employees are not entitled to notice under the NES. However, if a casual works regular and systematic hours, a court may deem them permanent, entitling them to notice. Some awards also include notice provisions for long-term casuals. Review long-term casuals before terminating.
Can My Employer Make Me Work My Notice Period?
Yes. The employer decides whether the employee works through the notice or is paid out. Options include working through the notice, payment in lieu (paying the equivalent of what the employee would have earned), or part work and part pay. For payment in lieu, the employer must pay the full amount including overtime, penalties, and allowances. Our payment in lieu of notice guide covers this in detail.
Serious Misconduct: When Notice Does Not Apply
Under s.117(2), no notice is required if employment is terminated for serious misconduct — conduct so serious it would be unreasonable to continue the employment. Examples include theft, fraud, assault, and intoxication at work. The threshold is high. Employers must still investigate, give the employee an opportunity to respond, and document their reasoning. Wrongly classifying ordinary misconduct as serious is a common path to an unfair dismissal finding. Download free employment document templates including warning letters and show cause templates.
Employer Checklist: Getting Notice Right
- Confirm the continuous service start date for the correct notice period.
- Check age: if 45+ with 2+ years, add 1 extra week.
- Check the contract and award for any notice above the NES minimum.
- Decide: work through notice or pay in lieu?
- Give written notice and record the date.
- Pay out all accrued leave on the final day.
- If redundancy, calculate both notice and redundancy pay.
Getting the notice period wrong, even by one week, can trigger an unfair dismissal application. If you need advice, our employer guides cover the full process, or call 1300 161 828.
Frequently Asked Questions
Under section 117 of the Fair Work Act 2009, minimum notice depends on years of continuous service: 1 week (under 1 year), 2 weeks (1-3 years), 3 weeks (3-5 years), 4 weeks (5+ years). If the employee is 45 or over with 2+ years of service, add an extra week. These are minimums, and your contract or award may require more. You can also pay the equivalent amount instead of having the employee work through the notice period (payment in lieu).
Yes. When an employer gives notice of termination, they can require the employee to work through the full notice period. Alternatively, the employer can pay out the notice period (payment in lieu) and release the employee immediately. The choice generally belongs to the employer, unless the employment contract states otherwise.
In most cases, yes. If an employer gives notice and does not pay in lieu, the employee works through the notice period, accruing leave and receiving normal pay. An employer cannot force an employee to take annual leave during notice unless the contract, award, or agreement allows it. If the employer wants the employee gone immediately, they must pay out the notice period.
The NES notice periods apply regardless of probation. A probationary employee with less than 1 year of service is still entitled to 1 week notice. However, termination for serious misconduct requires no notice. Some contracts specify shorter notice during probation, but this cannot be less than the NES minimum. For small businesses (under 15 employees), the minimum employment period for unfair dismissal claims is 12 months, but this does not override the notice requirement.
No. Casual employees are not entitled to notice under the NES because they have no guaranteed ongoing employment. However, if a casual works regular and systematic hours resembling permanent employment, a court may deem them permanent, entitling them to notice. Some contracts or awards include notice provisions for long-term casuals. Review long-term casual arrangements before terminating without notice.
Redundancy follows the same NES notice periods: 1 week (under 1 year), 2 weeks (1-3 years), 3 weeks (3-5 years), 4 weeks (5+ years), plus 1 extra week if 45+ with 2+ years of service. Additionally, eligible employees with 1+ year of service are entitled to redundancy pay under s.119, ranging from 4 to 16 weeks. Notice and redundancy pay serve different purposes and both are owed where applicable.
During the notice period, the employee continues to accrue annual and personal leave. An employer cannot force an employee to take annual leave during notice unless the contract, award, or agreement allows it. Accrued leave must be paid out on termination. If paying in lieu, leave is paid out immediately and does not continue to accrue.
The notice period starts from the date the employer gives written notice. If given in person, it starts that day. If given by letter or email, it starts from the date the employee receives it. The employment ends at the end of the notice period. If paying in lieu, employment ends on the date payment is made. Always record the date notice was given to avoid disputes.
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