The most common means of ending a contract of employment is by an employee giving notice, in other words resigning. A reason is not required. Once notice has been given and accepted it cannot be withdrawn unless both parties agree to the withdrawal of the notice.
The contract of employment may stipulate the amount of notice required. If the contract does not specify the period of notice, the courts require that reasonable notice be given. What is reasonable depends on a number of factors, including the status of the worker, the length of service, the customs and practices of the particular industry and how the wages are paid (that is, whether weekly or fortnightly). However, even reasonable notice cannot be used to bring to an end a contract of employment made for a fixed time (such as three years).
However it should be noted that legislation now requires that employers provide a certain minimum notice period when terminating the employment of one of their workers. The Fair Work Act 2009 (Cth) [s 117] sets out the minimum notice periods (for national system employees). These are the same as those set out in the Fair Work Act 1994 (SA)
Where an award an award or agreement does not state what notice must be given, the following times are required (Schedule 8 Fair Work Act 1994 (SA)) :
Period of continuous service Minimum notice less than 1 year - 1 week; 1 - 3 years - 2 weeks; 3 - 5 years - 3 weeks; more than 5 years - 4 weeks.
But if the employee is over 45 years of age and has completed at least two years continuous service, an extra week of notice must be added to these periods of minimum notice.
A workplace agreement or award may also state the period of notice that must be given (such as one eek or one month). Where these are more generous than the statutory minimum they will prevail. By strictly following the requirements of the agreement or award, the contract will be brought to an end at the end of the notice period. If the agreement or award provides for the payment of wages instead of giving notice, the contract of employment comes to an end when the money is accepted. However, if this is not expressly provided for, the termination of the employment contract will not necessarily be effected by giving the employee wages instead of notice.
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