Ask LH: How Much Notice Do I Have To Give?

Dear Lifehacker, I'm trying to change jobs and have had several interviews. The contract I have signed with my current company has a three-month notice period. This seems too long and most companies will not want to wait three months to fill a role. What are my legal rights in this situation? Can I give them less notice? Thanks, Looking For Work

Empty desk picture from Shutterstock

Dear LFW,

Three months is unusually long as a notice period. Four weeks is more typical, though it does vary widely between jobs. In sales positions, for example, you'll often be asked to leave the minute you announce your resignation, to minimise your ability to poach clients for your new employer. In higher-paid roles, the notice period might be shorter, but there's often a non-compete clause which says you can't work for specified rival companies for a set period of time.

You have signed the contract, which means in completely strict legal terms you do have to honour it. You could try taking your employer to court, but that's frankly expensive and unlikely. Nonetheless, you're right: three months is an unusually long period of time for people to wait to fill a role. It does happen, but that tends to be in more senior positions where waiting for the right person to perform the job is more important than filling it right away.

The bottom line is this: your contract might specify a three-month notice period, but what happens is actually down to your boss. If the right role does come along, the simplest thing to do is to explain to your current boss that you're planning to leave, and specify a date in the future when you intend that to be. Go halfway and offer six weeks; that's enough time to start looking for your replacement, but not an unreasonable period for your new employer to wait.

Assuming your management digs their heels in and insists on you working out the notice period, you have a couple of options. You could quit and walk out on the spot, but that has several consequences: you may not get paid for existing leave and other entitlements, you're unlikely to get a decent reference, and there's a slim chance your employer will take legal action to get you to stay.

The other choice? Give the full three months' notice and speed up your job-seeking activity. You don't want to be stuck in the same job and be more unsatisfied in two years' time. And learn from the experience: try and avoid signing contracts that are so restrictive in future.

That's our take. If readers have been through similar situations, we'd love to hear about your tactics in the comments. Good luck!

Cheers Lifehacker

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Comments

    Another option is to get all your remaining leave approved. When on leave let them know you're resigning. Leave time counts as part of your notice period.

    3 months. that's is absolutely insane.

    I got stuck in a similar situation. After 6 months in the job it turned out to be a disaster, the company wasn't far from going under. My dream job came up elsewhere. They made me stay those 3 months. Luckily the other company held the position for me.

    That was 3 months of starting late, leaving early and watching movies at my desk.

    I'm not sure what the advice concerning leave entitlements is based on, but section 90(2) of the Fair Work Act protects employees from having their leave withheld for any reason on termination of employment, as explained by the Fair Work Ombudsman:

    "If an employee is entitled to annual leave and annual leave loading, then they must be paid out for both entitlements if their employment is terminated. This applies even if a clause in a modern award, agreement or contract expressly states that either entitlement is not payable.

    This entitlement is based on the annual leave on termination provision in s.90 (2) of the Fair Work Act 2009 which provides that a terminated employee with a period of untaken annual leave must be paid what they would have been paid if they had taken that period of leave. This section is part of the National Employment Standards so it cannot be excluded by any term in a modern award, agreement or other instrument that may provide for a lesser benefit."

    I've heard of quite a few professional mid-level jobs having 3 month notice period - think associate level solicitors, patent attorneys, accountants etc.

      I don't know the specific legal terminology but I believe that if the employee quits their position their employment hasn't been terminated. An employer should be within their rights to without entitlements if an employee has breached the terms of the agreement in which those entitlements are specified

      I think those provisions only apply to terminations. According to the FWO at http://www.fairwork.gov.au/termination/notice-periods/pages/what-notice-should-you-give-if-you-resign.aspx:

      Employees should check their relevant modern, award, agreement or employment contract to find out how much notice, if any, they will be required to give when they resign.
      Employees should also be aware that some modern awards, agreements and employment contracts provide that an employer can withhold money from an employee if they do not give the required amount of notice.

      I'd definitely recommend contacting the Fair Work Ombudsman, though. They have an infoline for employment questions, so it wouldn't hurt to get more info from them.

      Last edited 27/05/13 12:08 pm

        When an employee quits it's still a termination, just employee initiated

        http://www.fairwork.gov.au/resources/fact-sheets/conditions-of-employment/pages/termination-of-employment-fact-sheet.aspx

        Termination of employment is when an employee’s contract of employment with an employer ends. This sometimes happens because of redundancy, resignation or dismissal.

        In the present case, it'd be termination of employment due to misconduct (which doesn't require the notice period).

        The withholding of money applies only to what would have been the required notice period - e.g. if I'm required to give 2 weeks, and I don't, the employer doesn't have to pay me for those two weeks. It has no impact on annual leave.

        For instance: http://www.fairwork.gov.au/termination/notice-periods/pages/serious-misconduct.aspx

        That said sparhawk0 is correct - contact Fair Work Ombudsman for specific advice

        IANAL - My gf is :P

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