You can’t always hold onto your employees forever – but it can be a hassle to hire and handover to a new person.

That’s why employees are often required to give ‘notice’ to resign.

By making employees give notice of their resignation, the idea is that the employer has enough time to prepare for the change.

What happens if an employee resigns without notice? It is even legal?

First we need to ask the most important question – what is notice?

What Is Notice, Anyway?

When an employee resigns, they may be required to tell the employer in advance that they are going to resign – i.e. give ‘notice’ to their employer.

This can be either verbal or in writing.

The amount of notice an employee needs to give can be set out in a variety of places – the employee’s award (that is set by law), the employment contract, an enterprise agreement or any other registered agreement. As a guide on how much notice is required, you can use this tool on the FairWork Ombudsman website.

An employment contract can extend the employee resignation notice period, but cannot make it less that the minimum set out in an award or agreement.

The employee resignation notice period starts the day after the employee gives notice that they want to end the employment and ends on the last day of employment.

Who Can Resign?

Any employee can choose to resign at any point in their employment relationship. However, there may be certain situations where you may question whether this is possible.

Can An Employee Resign During Probation?

The short answer here is yes, employees can resign during their probation period. However, this may also be subject to the clauses in their Employment Contract or their Modern Award. It may differ depending on the employee and their agreements, so double check the requirements and notice periods set out in writing.

Can An Employee Retract Their Resignation?

Yes, employees can retract their resignation. However, it’s worth noting that the employer does not have an obligation to do so. That said, it increases the risk of an unfair dismissal claim being made against them as the employer.

Like we said, there is no obligation to accept a withdrawal of resignation. However, there are two circumstances under which an employer may be inclined to accept the withdraal:

  • The employee resigns in the “heat of the moment”
  • The employer does something that forces the employee to resign

Can You Ask An Employee To Resign?

You can have a conversation with employees to ask them to resign, however, this isn’t the best path to take. It can be seen as highly unethical and you could be lined up for an unfair dismissal claim.

How Many Weeks Of Notice Do Employees Have To Resign?

Each modern award or enterprise agreement is different. When it comes to resigning, employees should refer to the award or agreement they are under to check how many weeks of notice they have to resign.

You can check the award you’re under and what the notice period is for your specific situation using Fair Work’s tool .

What To Do When An Employee Resigns

When your employee gives you notice of resignation, you generally have 2 options.

  1. You can make them work for the rest of the notice period; or
  2. You can allow the employee to leave early and pay them in lieu of notice.

You may have your reasons for doing either – and that’s fine!

The thing to remember at the end of the day is that you need to pay your employee everything you owe them. That’s all their accrued entitlements, leave and, if you let them leave early, their pay for the notice period.

Make sure you get what you’re entitled to as well. Ask the employee to return any property or confidential information that they may have in their possession.

What Happens If An Employee Resigns Without Notice?

Now we’re onto the tricky situation: Resignation without notice.

You can’t exactly force an employee to show up to work each day.

So what’s stopping an employee from resigning without any notice and not showing up to work anymore?

Well, aside from the legal stuff, a large factor would be to avoid annoying too many people.

Many employees want to maintain a good relationship with their employers even after they leave. That way they can get a good reference and maintain their personal network that could help with their future career.

In addition, there is a monetary benefit to sticking out the notice period.

If your employee fails to give the required notice, you may be able to withhold the equivalent amount from the employee’s final pay. This all depends on what it says in their award or agreement.

You should look at the award, employment agreement or registered agreement to see what rules apply to each of your employees.

What Happens If An Employee Gives Too Much Notice?

It’s possible to have a super organised employee who gives you more notice than required.

As the employer, you don’t have to accept this extra notice.

You only need to let an employee work, or pay them in lieu, for the minimum notice period.

When your employee gives you extra notice, you should tell them whether you accept the full notice period or whether you only want them to work the minimum notice period.

What To Take Away…

Employee resignations are hard enough as it is. At least when your employee gives notice, you have time to get everything in order and prepare for the transition.

Most of the time, your employee should give you sufficient notice.

If your employee doesn’t give you notice, you may not have to pay them for the notice period.

Being on top of your employees’ notice periods can make things easier to manage.

If you need help figuring out what rules apply to your employees surrounding notice, feel free to get in touch with us at Sprintlaw and we’d be happy to help.

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