What happens if an Employee resigns without notice?| Fairwork Online

What happens if an Employee resigns without notice?

Employers are probably aware that when an employee is terminated by an Employer for any reason (other than for misconduct), the Employer must provide the employee with a certain period of notice, or make payment of wages instead of notice.

But what happens if the employee resigns on the spot without providing you with any notice?

Generally, all Modern Awards contain a 'Termination of Employment' clause that requires an employee who intends to resign to provide you with a minimum period of notice of termination, and the period of notice is calculated as such - if the employee has worked with you:

For less than a year: the minimum notice period is one (1) week
Between 1-3 years: the minimum notice period is two (2) weeks
Between 3-5 years: the minimum notice period is three (3) weeks
5 years or more: the minimum notice period is four (4) weeks

If an employee resigns and fails to provide you with the minimum period of notice, under the relevant Modern Award that applies to your business, you are entitled to withhold any money owed to the employee, up to the equivalent amount that the employee would have earned if they had provided you with the required period of notice and had worked such notice.

For example, if the employee that has resigned is required to give you three (3) weeks' notice, and the employee only gives you one (1) week's notice, you can withhold two (2) weeks' wages and / or annual leave payments from the employee for failing to provide you with the required minimum notice.

This applies to any employee that is covered under a Modern Award that contains such a clause.  If you employ an employee that is not covered under a Modern Award, such a clause can be drafted into the employment agreement between the Employer and that Employee.

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