I Want to Fire an Employee. How Much Notice Do I Need to Provide?

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Table of Contents

• Minimum Notice Periods Under the Fair Work Act
• What Does the Employment Agreement Say?
• Dismissal Without Notice
• Key Takeaways 
• Frequently Asked Questions

There is a lot to consider when it comes to firing an employee. Not only do you need a lawful ground to terminate their employment, but you also need to ensure that you provide adequate notice. A notice period is the time between telling your employee that you intend to terminate their employment and their last day working for your business. An employment agreement, an industrial award and legislation can require you to give a minimum notice period to your employees. This article outlines the minimum notice periods when terminating employment to ensure you comply with such a requirement. 

Minimum Notice Periods Under the Fair Work Act

Under the Fair Work Act (‘the Act’), you must give the following minimum notice periods when dismissing an employee:

You should note that if your employee is 45 years old and has completed at least two years of continuous service for your business, you must add a week to the notice period. 

While the minimum notice periods under the Act apply to all workers covered by the national workplace relations system, an award, employment agreement, and enterprise agreement can set out longer minimum notice periods.

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What Does the Employment Agreement Say?

If the employment agreement contains express terms that tell you how much notice you must provide, you must follow whatever period is in the contract. However, the employment agreement cannot provide less than the minimum notice periods prescribed in the Act. If your employment agreement provides a notice period less than what is in the table above, the notice period may not be enforceable. 

When employing new employees, ensure that you have a written employment agreement setting out each party’s rights and responsibilities. Ideally, the agreement should be consistent with what an employee would be entitled to under legislation or an award. This reduces the risk of disagreement over the minimum notice period should the day come when you have to fire the employee.

However, it is not always so straightforward, and we discuss why below.

Dismissal Without Notice

There are only a few instances where you can fire an employee without providing notice. You can dismiss an employee ‘on the spot’ without notice if they engage in serious misconduct. Serious misconduct can include:

• stealing from the workplace/employer or work colleagues;
• acting fraudulently;
• being intoxicated at work;
• not being able to follow your directions;
• actions that place the health and safety of others at risk; and
• actions that put the profitability of your business at risk.

However, when dismissing an employee, you should always provide ‘procedural fairness’ where appropriate. Procedural fairness would mean that you:

• give your employee an explanation of the allegation with as many relevant details as possible;
• allow your employee to have the opportunity to respond to the allegation; 
• provide the employee with the opportunity to have a support person present, such as a workplace counsellor or partner. 

If an employee commits serious misconduct that puts others at risk, it may be difficult to follow these processes. However, for the dismissal to be fair, you should thoroughly investigate the instance of severe misconduct and report the allegation of theft, fraud or violence to the police where appropriate.

Key Takeaways 

Under the Fair Work Act (‘the Act’), you must give a minimum notice period of termination when firing an employee. A notice period is the time between telling your employee that you intend to terminate their employment and their last day working for your business. While an award, employment agreement and enterprise agreement can set out longer minimum notice periods, they cannot provide less than what is in the Act. Additionally, one of the only instances where you can dismiss an employee without notice is if they commit serious misconduct. 

If you have questions about minimum notice periods, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page. 

Frequently Asked Questions