GRHAll employees in Australia are subject to 10 employment entitlements that are provided to all employees under the National Employment Standards (“NES”). In respect of notice periods under the NES the minimum notice periods are as follows;

Employee’s period of continuous service with
the employer at the end of the day the notice is given
Not more than 1 year 1 week
More than 1 year but not more than 3 years 2 weeks
More than 3 years but not more than 5 years 3 weeks
More than 5 years 4 weeks

There is a common misconception that the notice periods set out in the NES are the notice periods an employer can actually rely upon in terminating an employee’s employment. The law is that the National Employment Standards only set out a minimum, so, in circumstances where there is no employment contract or enterprise agreement with a clause stating precisely what the period of notice is a ‘reasonable notice period’ will be implied instead.

This was highlighted in a recent Supreme Court of New South Wales case being, Susanna Ma v Expeditors International Pty Limited [2014] NSWSC 859.

The case of Susanna Ma involved an employee at a global shipping company who had 24 years of service. There was no termination of employment clause in her contract, therefore the Court was able to find that a ‘reasonable notice period’ of 10 months be applied to the employee in these circumstances. This is in contrast to 4 weeks as a notice period under the NES for more than 5 years of continuous service.

The Court in this case looked at the employee’s circumstances such as her age (which was 49 years), the relatively high wage and the seniority of her position.

Cases such as Susanna Ma highlight the need for employers to have well-drafted contracts of employment in place. In circumstances where there is no express clause in relation to notice periods a Court may well interpret a reasonable notice period as being in excess of the National Employment Standards. It is important to have employees on current and clearly defined employment contracts with sufficiently drafted termination clauses.

If you are an employer who wishes to review their employment contracts, or an employee facing termination in their employment, Everingham Solomons can assist, because Helping You is Our Business.

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