How much notice must you give before Dismissing an Employee?

When an employee is being dismissed, notice must be given. The notice starts when the employer tells the employee that they want to terminate the employment. Notice ends on the last day of employment.

The length of notice an employee must be given is determined by how long they have worked for you and their type of employment. If someone has worked for you continuously for over one year but less than three you must provide a minimum of two weeks’ notice.

An employer must give the following notice periods when terminating an employee;

• Less than 1 year’s employment - 1 weeks’ notice.
• 1-3 years employment - 2 weeks’ notice
• 3-5 years employment - 3 weeks’ notice
• Over 5 year’s employment – 4 weeks’ notice.

An employee is entitled to receive an extra week of notice if they are over 45 years old and have worked for the employer for a minimum of 2 years.

Sometimes an award, registered agreement or employment contract can specify longer minimum notice periods.

If a registered agreement has been put in place, check the terms of the agreement for the correct amount of due notice.

The minimum amount of notice an employer must provide is determined by the length of the employees continued service with them. Continuous service is the length of time an employee is employed by a business. Service does not include unpaid leave, with the exception of unpaid parental leave which does count as service towards notice of termination.

An employer may provide more notice than they are obligated to in the award, registered agreement or contract. The employee is only required to work out the minimum notice period although they are able to work out the extra notice if they choose to do so.

An employee is entitled to take annual leave during a notice period if the employer consents to the leave.

An employee may also take sick leave during a notice period if they provide notice of the leave as soon as possible and evidence (medical certificate ) if required.

If an employee has used up all of their sick leave they may take unpaid sick leave. They will still have to provide notice and evidence if required.

An employee cannot be forced to take leave as part of their notice period.

An employer can also provide payment as a replacement for notice, which can be equal to or exceed the total amount the individual would have been paid for the required amount of notice.

3 Common Employment Law Questions Answered

Sometimes employment law can be difficult to comprehend. Here are three common work place situations and their legal ramifications.
 
1: DISMISSAL DUE TO ILLNESS

There are three potential areas of legal exposure:

•    unfair dismissal;
•    unlawful termination; and
•    discrimination

From time to time an employee will have to leave your employment due to long term health issues. They may decide to resign or you may have to eventually consider dismissing them. It is beneficial to consider as many ways possible to help them back to work – dismissal should be a last resort and could be deemed unfair if not managed properly.

If continued employment is no longer achievable because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.

The Fair Work Act 2009 states that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.

The Fair Work Regulation 2009 provides that it is not a “temporary absence” if the employees absence from work extends for more than 3 months , or the total absences of the employee , within a 12 month period , have been more than 3 months. The employer still requires a valid reason to dismiss the employee, even if the employee has been absent on unpaid leave for three months or over.

We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.

2: EVIDENCE OF ILLNESS

You can insist on employees providing evidence that would satisfy a reasonable person that they are entitled to sick leave, for example, a medical certificate or statutory declaration. That being said there is no specific timeframe as the timeframe required is “as soon as practicable”.

For this reason you should devise a written policy that stipulates that your employees provide such information within a specific timeframe. Your policy should also specify that your employees inform their manager directly of their absence (when possible), or phone their manager within a certain timeframe to explain why they cannot make it to work and when they expect to return.

3: NOTICE OF REDUNDANCY

When dismissing an employee it is necessary to give them notice. The notice commences when the employer tells the employee that they want to end the employment. If you notify them of their redundancy just before leave, the time spent on annual leave will count towards their notice period.