Notice Periods In Australia: What Employers Need To Know

When employment ends, the “notice period” is one of the first and most important things employers need to get right.

Handled well, notice protects your business, gives you time to transition work, and helps you meet your obligations under the Fair Work Act and any applicable award or enterprise agreement.

In this guide, we’ll break down how notice periods work in Australia, how to calculate them, when you can ask staff to work (or not work) their notice, and what to watch out for with things like leave, probation and redundancy.

What Is A Notice Period And When Is It Required?

A notice period is the minimum time an employer or employee must give before employment ends.

Notice applies to most terminations and resignations. In Australia, the National Employment Standards (NES) set a baseline, and an award, enterprise agreement or contract can require more generous notice (but not less).

Common scenarios where notice applies include:

• Employee resignation (the employee gives notice to you).
• Ordinary termination by the employer (you give notice to the employee).
• Redundancy (notice still applies, plus any redundancy pay if eligible).

Notice is not required for serious misconduct (for example, theft or violence), but you still need a fair and lawful process. If you’re unsure whether a situation qualifies as serious misconduct, it’s wise to get advice before acting.

How Do You Calculate The Correct Notice Period?

Start by checking three things in this order:

1. The employee’s contract (it may specify a longer notice period).
2. Any applicable award or enterprise agreement (these can set minimums or specific rules).
3. The National Employment Standards (NES) (these set the absolute minimum for most employees).

Under the NES, the minimum employer notice depends on the employee’s continuous service (and adds one extra week if they’re over 45 and have at least two years of service). However, many employers opt to align with the longer period in the contract to keep things consistent across the team.

If you want a step-by-step breakdown of the moving parts, it’s helpful to look at calculating employee notice periods in practice, including how contracts, awards and the NES interact.

Resignation Notice Vs Employer Notice

Do employees have to give notice when they resign? Usually yes, if the contract, award or enterprise agreement requires it.

The amount of resignation notice can differ from employer notice, so always check your documents. For an overview of how resignation notice works, see resignation notice periods and how to set expectations with your team.

Does Probation Change The Notice Period?

Yes, many contracts set a shorter notice period during probation (for example, one week). This is valid as long as you meet or exceed any minimums in the relevant award or the NES.

If you’re ending employment during probation, make sure you still follow a fair process. Our guide to terminating employment during probation outlines the key steps and risks.

Can Employees Work, Not Work Or Be Paid In Lieu Of Notice?

As the employer, you generally control whether an employee works out their notice, is placed on garden leave, or receives pay instead of working notice. The right option depends on the role, risk profile and commercial considerations.

Working The Notice Period

This is the default approach. The employee keeps working their usual duties until the end date. It gives you time to hand over tasks, complete projects and protect relationships.

If there are performance or conduct concerns, think carefully about access to systems and clients during notice. You may prefer garden leave or payment in lieu in certain roles.

Garden Leave

On garden leave, the employee stays employed and paid during the notice period, but they don’t attend work or perform duties (and usually can’t start with a competitor during this time).

Garden leave needs to be permitted by the contract and managed carefully. To understand when it’s appropriate and how to implement it, see our practical overview of garden leave.

Payment In Lieu Of Notice

Instead of the employee working notice, you can end employment immediately and make a lump-sum payment equal to the wages they would have earned during the notice period.

There are tax and payroll implications, and some awards or enterprise agreements have specific rules on when this is allowed. Read more about payment in lieu of notice and when it’s the cleanest option to separate quickly and reduce risk.

Many employers also ask whether superannuation is payable on these amounts. The answer can depend on whether the payment counts as ordinary time earnings. Our guide to payment in lieu of notice and superannuation explains the usual treatment and where to take care.

What If An Employee Won’t Work Their Notice?

If an employee resigns and refuses to work their notice, you may be able to deduct pay (or not pay for the period), but only if the contract clearly allows it and the deduction complies with the Fair Work Act and any award rules.

It’s important to act fairly and lawfully to avoid underpayment issues or disputes. For practical options and risk points, see our guide on employees not working their notice period.

Leave, Public Holidays And Other Entitlements During Notice

Notice periods can overlap with other entitlements. Here’s how the common ones work at a high level:

• Annual Leave: If an employee takes approved annual leave during notice, the leave usually still counts towards the notice period. Any accrued but unused annual leave must be paid out on termination.
• Personal/Carer’s Leave: Paid sick leave can be taken if the employee is unfit for work, and notice continues to run. You can request reasonable evidence (for example, a medical certificate).
• Public Holidays: If a public holiday falls during notice, the day is paid as a public holiday (if the employee would ordinarily work that day) and still counts towards notice.
• Long Service Leave: Entitlements depend on the state or territory legislation. If long service leave is taken during notice, check the local rules and your award or enterprise agreement.

Where possible, confirm the end date in writing, showing how any leave or public holidays are treated so there’s no confusion about pay calculations.

Redundancy, Serious Misconduct And Other Special Cases

Not every ending is the same. These scenarios need particular attention:

Redundancy

When a role is genuinely no longer required, redundancy entitlements may apply. Notice is still required (or payment in lieu), and eligible employees may also receive redundancy pay under the NES (or more through an award or enterprise agreement).

Make sure you consult in line with any award or enterprise agreement obligations, and issue clear, compliant letters to avoid disputes.

Serious Misconduct

If you dismiss for serious misconduct, you generally do not need to provide notice. However, the conduct must meet the legal threshold and you should still follow a fair process and keep good records. Getting the classification wrong can expose your business to unfair dismissal or general protections claims.

Probation And Minimum Employment Period

Even during probation or the minimum employment period (generally 6 months for most businesses, 12 months for small business employers), you should follow your contract and any applicable award for the minimum notice. A shorter contractual notice is common at this stage, provided it still meets minimum standards.

Best-Practice Steps For Employers

Getting the process right reduces risk and keeps things professional. As a simple blueprint:

1. Check the documents: Confirm the applicable award or enterprise agreement and the contract notice clause. This guides your minimum obligations and options.
2. Decide how notice will be served: Working notice, garden leave, or payment in lieu. Choose the option that best protects the business and aligns with your contract.
3. Confirm the end date and pay: Put it in writing, including any pro-rata salary, leave entitlements, commissions/bonuses (if applicable), and whether super is payable on any in-lieu amount.
4. Manage access and handover: Adjust system access as needed, plan a handover, and communicate appropriately with clients and internal teams.
5. Close out: Final pay on time, issue required documents (like a separation certificate if needed), and update payroll and HR systems.

Lock Notice Periods Into Your Employment Contracts

The easiest way to avoid disputes is to make your contractual notice clause clear, consistent and compliant.

For new hires, ensure your Employment Contract sets out the length of notice, whether garden leave is allowed, what happens if the employee resigns without notice, and how you’ll handle deductions or offsets (only where lawful).

Align With Your Policies

Clarity in your policies helps managers apply notice consistently across teams. This is often part of a broader Staff Handbook or workplace policies suite, and complements your contracts.

FAQs Employers Ask About Notice Periods

Can I Require A Longer Notice Period Than The NES?

Yes, a contract can set a longer period than the NES minimums. Just make sure the clause is reasonable, consistent with any award or enterprise agreement, and is the same or similar for both sides where appropriate (this supports fairness and retention).

Can I Shorten An Employee’s Notice After They Resign?

If the employee resigns with, say, four weeks’ notice but you want them to finish earlier, you can agree a reduced period together. If you require them to finish earlier unilaterally, this generally becomes payment in lieu of notice for the shortfall.

Do I Have To Let An Employee Work During Notice?

No. Depending on the contract, you can place them on garden leave or pay in lieu. This is common for roles with sensitive data or client relationships, or where continued presence isn’t practical.

What If An Employee Uses Sick Leave Every Day Of Their Notice?

If the employee is genuinely unfit for work, they can access paid personal/carer’s leave and you can request reasonable evidence. Notice keeps running in most cases, but always check the award and document the evidence you’ve requested and received.

Do I Need To Consult Before Redundancy Notice?

Often yes where an award or enterprise agreement applies. Consultation obligations are strictly enforced. Follow them alongside your redundancy and notice obligations to reduce the risk of claims.

Key Takeaways

• Notice periods in Australia come from the contract, any applicable award or enterprise agreement, and the NES - always check all three.
• Employers can require working notice, use garden leave, or make a payment in lieu where lawful; choose the option that best protects your business.
• Resignation notice can differ from employer notice, so set clear, compliant clauses in your Employment Contract and ensure managers apply them consistently.
• Leave and public holidays can fall during notice - confirm the end date and pay in writing to avoid confusion.
• Special cases like redundancy, serious misconduct and probation have extra rules - get process and paperwork right to manage risk.
• Where issues arise (for example, an employee refuses to work notice), use the contract and lawful options outlined in guides like employees not working their notice period to stay compliant.

If you’d like a consultation on managing notice periods for your team, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.