Reasonable Notice Claims

Section 117 of the Fair Work Act 2009 provides minimum notice periods which an employer must give or pay an employee when terminating their employment, other than for ‘serious misconduct’.

Where the employment contract specifies a longer period of notice, the longer period applies. Where a contract of employment is silent on notice of termination, the common law may imply a term which requires the employer to provide the employee ‘reasonable notice’. Top of Form

A terminated employee who does not have a specified period of notice in their contract may make a claim to be paid ‘reasonable notice’.

The primary purpose of notice is to enable an employee to find similar employment elsewhere, and what amounts to a reasonable period of notice to be given when terminating employment depends on the facts of the case in light of all relevant circumstances

When determining what constitutes ‘reasonable notice’ the court will consider:

• the seniority and importance of the position;
• size of the employee’s salary;
• the nature of the employment;
• an employee’s length of service;
• an employee’s professional standing;
• the employee’s age, qualifications and experience; and
• the expected period of time to find alternative employment.

Courts have awarded periods of notice in excess of 18 months pay, with employees walking away with large sums post employment.

Employers must be careful to ensure that their employees are subject to binding written employment contracts specifying an agreed period of notice upon termination.

Employees who do not have a written contract specifying the required notice for termination should seek legal advice on potential claims if their employment is terminated by their employer.