When an employee resigns from their employment, they may be required to provide their employer with a minimum notice period. An employee will often work through their minimum notice period, but sometimes their employer may not require them to.

The employee’s employment continues unchanged during the notice period. This is the case even if the employee gives more than the minimum period of notice.

The last day of the employee’s employment is the last day of their notice period.

Notice period

When an employee resigns, they need to give their employer at least the minimum notice period that applies. This may come from their employment contract or their industrial instrument, such as an award, enterprise agreement, or other registered agreement.

Sometimes an employee may choose to give their employer more notice than the minimum notice period required by their industrial instrument or employment contract.

The last day of the employee’s employment is the last day of their notice period, unless this date is varied by mutual agreement between the employer and employee, or the employer terminates the employee’s employment during the notice period.

Ending the notice period early

If an employee resigns from their employment and provides their employer with the required notice period (or more than the required notice period), their employer may decide they don’t want them to work through their notice period. The employer may decide this either when the employee resigns, or later before their employment ends. A number of options may be available, including:

• Coming to an agreement with the employee to stop working
• Ending the employee’s employment.

Coming to an agreement with the employee to stop working

Where an employee has provided the required notice period (or more than the required notice period) and the employer doesn’t require the employee to work out the notice period, the employer and employee may agree to an earlier date that the employee will cease working.

If an employer and employee reach an agreement to end the employment earlier, the employee would still be entitled to receive at least their minimum notice period . For assistance with coming to an agreement with an employee to stop working earlier, you may wish to refer to our resources on preventing workplace problems or fixing a workplace problem.

Example

Madri has worked for her employer, Atlas, for 2 years when she decides to resign. Her award says she needs to give Atlas 2 weeks’ notice.

Madri decides to give Atlas 4 weeks’ notice to give him enough time to find a replacement for her job. She works 1 week of her resignation notice period when Atlas finds a replacement for her role and decides that he does not need her to work for the rest of her 4 week resignation notice period.

Atlas seeks independent legal advice and then discusses Madri’s notice period with her. They reach a mutual agreement that Madri will cease work immediately and be paid 2 weeks’ pay.

Atlas has to pay Madri for the week she worked during her resignation notice period and the 2 weeks’ pay.

Ending the employee’s employment

If an employee resigns and provides their employer with the required notice period (or more than the required notice period) and the employer doesn’t require the employee to work out the notice period, the employer can terminate the employee’s employment before the end of the notice period, and provide them with the full period of required notice or a ‘payment in lieu of notice’.

Before ending an employee’s employment during their notice period, an employer should consider all of their obligations. An employer should also be aware that an employee may be able to dispute a decision to end their employment through claims such as:

• unfair dismissal
• breach of general protections
• unlawful termination
• breach of contract.

For more information on ending employment, see Ending employment - Fair Work Ombudsman.

Seeking independent advice about your options

Before taking any steps in relation to ending an employee’s notice period early, employers may need to consider seeking independent advice about their available options.

For information regarding ending an employee’s employment see Notice and final pay.