Is It Legal To Fire Someone Without Notice?

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When somebody gets fired in a movie or TV show, it is usually "effective immediately" with the hapless employee ordered to clear out their desk by the end of the day. Sometimes they are even forcibly removed from the workplace. But is any of this legal? Let's find out.

While the above scenarios make for exciting drama, the reality is usually quite different. In Australia, there are strict rules to ending employment that all businesses must adhere to.

Notice of termination pay is part of the National Employment Standards (NES). These rules protect all employees covered by the national workplace relations system, regardless of any award, agreement or contract they might have.

The minimum notice of termination that must be given depends on a range of factors, including the type of employment, the age of the employee and the number of years they have been continuously employed for. Here are the main rules as outlined on the Fairwork Ombudsman website:

Notice of termination

An employer must provide an employee with written notice of the day of termination when ending their employment.

What amount of notice must be given?

An employer must not terminate an employee unless they have either:

  • given the minimum period of notice
  • paid the employee instead of giving notice. This is paid at the employee's full pay rate as if they had worked the minimum notice period.

An employee’s full pay rate includes the following:

  • incentive-based payments and bonuses
  • loadings
  • monetary allowances
  • overtime or penalty rates
  • any other separately identifiable amounts.

And here are the minimum notice periods based on the period of continuous service:

Period of continuous service Minimum notice period
1 year or less 1 week
More than 1 year - 3 years 2 weeks
More than 3 years - 5 years 3 weeks
More than 5 years 4 weeks

Note that employees over 45 years old who have completed at least two years of service must be given an additional week of notice.

Often, an employer may elect to pay the employee their full entitlements instead of giving notice (AKA pay in lieu of notice.) So you technically can be ordered to clear out your desk like in the movies - but you should still receive full pay for the minimum notice period you are entitled to.

There are exceptions to the above where the employer does not need to provide any notice of termination. Examples include casual workers, employees who were hired for a specified period of time and as a result of serious misconduct, such as theft, assault or sleeping on the job. (Examples of behaviour that may result in immediate termination are usually listed in your employment contract.)

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.

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Comments

    Employer can get rid of employee within probation without any reason, my company going through restructure, they got rid of one employee in probation. They increased the probation time from 3 months to 6 months few months ago.

      That's true, but I'm pretty sure they still need to give minimum notice (i.e. - one week.)

    Minimum notice period is bit dodgy as my contract says 1 month notice but fair work says 4 weeks, but 1 month is equal to 4.33 weeks. I think my company gave some people 4 weeks notice payout.

    Hang on - don't employees at some types of companies get 'walked' without much notice (so they can't access sensitive information, etc.)? How does that work? Is that due to special terms of employment?

      In these situations, the employer would pay in lieu of notice. See this paragraph in the article.
      Often, an employer may elect to pay the employee their full entitlements instead of giving notice (AKA pay in lieu of notice.) So you technically can be ordered to clear out your desk like in the movies - but you should still receive full pay for the minimum notice period you are entitled to.
      Same thing can happen in Finance as well.

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