When employment ends, the notice period is the buffer between "we're done" and actually being done. It is the time, fixed in advance, that an employer or employee must give before the employment relationship terminates. For an employer it is not just a courtesy. As a National Employment Standard (NES) under Part 2-2 of the Fair Work Act 2009 (Cth), minimum notice is a legal floor that applies to almost every permanent employee in the national system.
This guide explains how the notice mechanism actually operates: where the obligation comes from, how the minimum is calculated, the different ways notice can be served, and the specific points where businesses get tripped up. The topic matters most when a departure is not routine, because that is when the cost of getting it wrong is highest. A dismissed employee who was not given proper notice can pursue an unfair dismissal claim, and the Fair Work Ombudsman can investigate underpayment where final pay falls short.
Who the notice obligation sits with
There are two directions to notice, and they are governed differently.
The employer side is the legally enforced one. Under s 117 of the Fair Work Act 2009 (Cth), an employer must not terminate an employee's employment unless it has either given the employee written notice of the date of termination, or paid the employee in lieu of that notice. This obligation applies only to termination initiated by the employer. It is a strict minimum; neither an award, an agreement nor a contract can set a lower amount, though any of them can set a higher one.
The employee side is largely a matter of contract. The NES does not impose a general obligation on an employee to give notice when resigning, although s 118 of the Fair Work Act 2009 (Cth) expressly allows a modern award or enterprise agreement to require an employee to give notice. In practice most awards do require notice of one or two weeks, and many employment contracts build in their own resignation notice clause. When an employee resigns with less notice than the award or contract requires, the employer's remedy is usually a lawful deduction from final pay, which itself has strict limits under s 324 of the Fair Work Act 2009 (Cth) and can only apply where the instrument permits it.
The interested parties beyond the two of you are the Fair Work Ombudsman, which enforces underpayment and breaches, and the Fair Work Commission, which hears unfair dismissal and general protections claims. Both become relevant only when notice has been handled badly, which is why the mechanics matter before anything has gone wrong.
Where the notice minimum comes from
Three documents sit in a hierarchy, and the right answer to "how much notice" is the highest one that applies:
- The contract: Your employment contract may specify a notice period for both directions. It can be longer than the NES minimum but never shorter where the NES applies to the employee.
- The award or enterprise agreement: A modern award often sets its own notice requirements, and an enterprise agreement can too. These override the contract on notice but cannot go below the NES.
- The National Employment Standards: The NES is the absolute floor in s 117 of the Fair Work Act 2009 (Cth). Whatever the contractual and industrial documents say, an employer covered by the national system cannot give less than the NES minimum.
The practical skill is checking all three in that order and using whichever gives the greater entitlement. Many employers hold a single notice period across the team to keep payroll simple, but that period must still be at least the NES minimum for the longest-serving and oldest employees it covers.
How the NES minimum is calculated
The NES notice table in the Fair Work Act 2009 (Cth) keys the minimum to the employee's period of continuous service with you. The Fair Work Ombudsman sets out the scale as follows:
- 1 year or less: 1 week
- More than 1 year, up to 3 years: 2 weeks
- More than 3 years, up to 5 years: 3 weeks
- More than 5 years: 4 weeks
Continuous service is measured under s 22 of the Fair Work Act 2009 (Cth). Periods of approved paid leave count towards it, and an unpaid absence excludes time but does not break continuity. The point is that the count is cumulative service with you, not time actually at a desk.
There is one important adjustment for age. An employee who is over 45 and has completed at least two years of continuous service is entitled to an additional week of notice. So a 48-year-old with six years of service would get four weeks, plus the extra week, for a total of five weeks. The extra week is easy to overlook in a busy HR office, and it is a common source of underpayment.
The three ways notice can be served
Once you know how much notice you owe, you still get to choose how the employee spends it. There are three main options, and the right one depends on the role.
Working out the notice
This is the default. The employee keeps working their usual duties to the end date, giving you time to hand over work and clients and close out tasks. It works well for most departures, but it assumes the employee still has a reason to perform. Where there are conduct concerns, or an employee is leaving for a competitor, a working notice period can expose your systems and client relationships during the final weeks.
Garden leave
Garden leave means the employee stays employed and paid throughout the notice period but does not attend work or perform duties. They remain bound by their obligations, including confidentiality and usually any restraint, which is why it is attractive when someone is moving to a rival.
Garden leave is not set out in the Fair Work Act 2009 (Cth); it depends on the contract. If the contract does not give you an express right to direct garden leave, imposing it can turn into a dispute, because you are effectively refusing the employee the work they were engaged to do. The practical rule is that it must be written into the contract before you need it.
Payment in lieu of notice
Payment in lieu ends the employment immediately and replaces the notice period with a lump sum. Under s 117(2)(b) of the Fair Work Act 2009 (Cth), the payment must be at least the amount the employer would have been liable to pay during the notice period. The Fair Work Ombudsman makes clear this is the employee's full pay rate, which includes incentive-based payments and bonuses, loadings, monetary allowances, overtime and penalty rates, and any other separately identifiable amount. It is not simply base salary.
Payment in lieu is the cleanest option when you want the separation to be immediate, whether because of a conduct issue, a client relationship, or simply that the employee has access to sensitive information. The trade-off is that the employee is paid for time not worked.
What ends up in the final pay
However notice is served, the final pay calculation is where businesses most often get caught. On termination the employee is owed all accrued and unused annual leave, and in some states long service leave, together with any wages up to the last day.
If you are paying in lieu of notice, remember that amount is on top of these entitlements and is calculated at the full pay rate, not base salary. You must also consider whether superannuation applies to the payment in lieu amount, which depends on whether it counts as ordinary time earnings, so it is worth checking before you settle on a figure.
When notice is not required
The NES does not require notice in certain situations, and it is worth knowing precisely which ones, because the exception is narrower than many assume.
Serious misconduct
Notice is not required where the termination is for serious misconduct, such as theft, fraud, sexual harassment or assault. The Fair Work Ombudsman lists these as situations where the notice obligation does not apply. The caution is that the conduct must genuinely meet the serious misconduct threshold. If you dismiss someone for a lesser issue and skip notice, you can face an unfair dismissal claim for that reason alone.
Casuals, fixed term and similar roles
Notice does not generally apply to casual employees, employees on a fixed term contract or seasonal arrangement, and certain daily hire and weekly hire roles in defined industries. An employee is also not entitled to notice until they have built up service; a new starter on their first day is not owed the notice floor in the same way. A casual who has been working a regular pattern may nevertheless gain other rights, so the casual classification needs to be genuine.
Notice that overlaps with leave or a redundancy
Notice rarely happens in isolation. When it collides with other entitlements, the interaction has its own rules.
Leave during notice
If an employee takes approved annual leave during the notice period, that leave normally still counts towards the notice. The same goes for a public holiday that falls during the period, which is paid and counts towards notice if the employee would ordinarily have worked that day. Personal and carer's leave can be taken if the employee is genuinely unfit for work, and you are entitled to request reasonable evidence such as a medical certificate. The notice period continues to run while the employee is on it. Long service leave during notice depends on the state or territory legislation, so the local rules and any award or agreement should be checked.
Redundancy and notice
Redundancy is not a substitute for notice. When a role is genuinely no longer required, notice is still owed, and an eligible non-small business employee is also entitled to redundancy pay under s 119 of the Fair Work Act 2009 (Cth). The redundancy pay scale runs from four weeks for at least one year of service up to 16 weeks for nine to ten years, then reduces to 12 weeks from ten years of continuous service. It is payable on top of notice.
Two things limit redundancy pay. First, an employee with less than 12 months of continuous service is not entitled to it. Second, a small business employer, defined as employing fewer than 15 employees at the time notice is given, is generally exempt from redundancy pay under s 121 of the Fair Work Act 2009 (Cth). Counting the 15 includes casuals who have worked a regular and systematic pattern and treats associated entities as one.
There is also a consultation duty. For a dismissal to be a genuine redundancy under s 389 of the Fair Work Act 2009 (Cth), the employer must comply with any obligation in a modern award or enterprise agreement to consult about the redundancy. If consultation is skipped, the redundancy may not be genuine and the dismissal can be unfair. Notice and redundancy are two separate obligations that both need to be met.
Where a lawyer actually helps
Notice is a fixed set of rules that you can apply mechanically in the straightforward case. The value of professional help concentrates at the edges, and the earlier you get it the cheaper it is.
A lawyer is most useful where the classification or the amount is genuinely uncertain. That includes working out whether a departure is truly serious misconduct so you can lawfully withhold notice, whether a role is genuinely redundant given any redeployment options under s 389 of the Fair Work Act 2009 (Cth), whether a payment in lieu is correctly calculated at full pay rate, and whether a garden leave clause in a contract can be enforced. These are exactly the situations where a misstep converts a routine exit into a claim.
The rest of the work is structural and should be done before any departure is on the table. If your employment contracts lack a proper notice clause, a garden leave right and a lawful deductions clause, no amount of care at the end of a relationship can fix that. Having a lawyer review the contract and award coverage now is far less expensive than defending an unfair dismissal or underpayment claim later.
Most of notice is predictable, and a consultation can be directed at one or two genuinely uncertain questions rather than the whole scheme. Knowing which part of the process is uncertain is itself worth a conversation, because a quick check of the contract and the award will usually confirm whether you are on solid ground or staring at a risk you cannot see.