Employee Resignation Notice Period

Resignation refers to an employee’s voluntary decision to depart from their position or job. Crucially, for it to be considered a genuine resignation, it must be voluntary.

Employers should take note of the following:

  • Resignations ought to be documented in writing and must specify the intended effective date of departure.
  • Failure by employees to provide the required notice period may result in liability for penalties to cover the duration, subject to the terms of the relevant award or employment contract.
  • Employers have the option to offer payment in lieu of notice if they prefer the resigning employee not to serve the full notice period.
  • A forced resignation essentially constitutes a dismissal under the law (known as constructive dismissal).

Record Keeping

Employers should maintain records of employees’ resignation notices. In instances where formal written notices are absent (e.g., verbal resignations), employers can issue a confirmation of resignation letter to the employee.

Notice Period

Upon resignation, employees may be obliged to provide notice to their employer, with the duration specified in their award, agreement, or contract of employment.

Following an employee’s resignation and the provision of the requisite notice:

  • Employers can opt to allow the employee to work through the notice period.
  • Alternatively, employers may request the employee to depart early and compensate them with payment in lieu of notice.

If the latter option is chosen, employers must remunerate the employee for the notice period, inclusive of any incentive-based payments, bonuses, loadings, allowances, and penalty rates they would have received.

Employers may also decide to have the employee serve part of the notice period while providing payment in lieu of notice for the remainder.

Forced Resignation

A forced resignation, often termed constructive dismissal, occurs when an employee feels compelled to resign due to actions or inactions by their employer.

It falls upon the employee to demonstrate that their resignation was not voluntary and that the employer effectively forced their hand.

The Fair Work Act recognizes the concept of constructive dismissal, allowing for a determination that an employee was dismissed in scenarios such as:

  • Being essentially directed to resign by the employer under the threat or impending risk of dismissal.
  • Quitting the job in response to employer conduct that leaves them with no reasonable alternative but to resign.

In such instances, employees may have grounds to pursue an unfair dismissal claim against the employer.

 

About HR Connect

HR Connect is one of Australia’s leading providers of Human Resources services designed to increase productivity and ensure compliance within small to medium businesses. We provide actionable solutions through tailored HR advice – including compliance health checks through an HR audit, HR documents for compliant policies and procedures, WHS compliance, and advice on employment.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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