Guide
Who does not get notice of termination in Australia
Updated
The NES scale has real exclusions, and they are the reason a lot of people arrive at a notice calculator and get zero.
The exclusions
The Fair Work Ombudsman states that under the NES, notice periods do not apply to employees who (Fair Work Ombudsman: who doesn't get notice):
- are casual
- are employed for a specific period of time, season or task
- are fired because of serious misconduct
- have a training arrangement and are employed for a set period of time or for the length of the training arrangement, other than an apprentice
- are daily hire working in the building and construction industry, or in the meat industry in connection with the slaughter of livestock
- are weekly hire working in connection with the meat industry and whose employment ends only because of seasonal factors
Serious misconduct still leaves entitlements
Where an employee is dismissed for serious misconduct the employer is not required to give notice, but the Fair Work Ombudsman says the employer must still pay the employee's outstanding entitlements: payment for time worked, unused annual leave, and in some cases long service leave. No notice does not mean no final pay.
The Fair Work Ombudsman describes serious misconduct as deliberately behaving in a way that is inconsistent with continuing employment, including conduct causing serious and imminent risk to the health or safety of another person or to the reputation or profitability of the employer's business, and gives theft, fraud, assault, sexual harassment, being intoxicated at work and refusing a lawful and reasonable instruction that is part of the job as examples.
A fixed term ending is not a dismissal
In the Fair Work Ombudsman's own example, a retail assistant hired for three months to cover a holiday period has his employment end at the three month mark with no notice given, because the contract set out that he was hired for a specific period. The regulator notes it is still best practice for the employer to give written confirmation of the last day.
Casuals and written notice
The Fair Work Ombudsman says certain employees, including casuals, are not entitled to written notice of termination under the NES, and that it is best practice for all employees and employers to confirm in writing when the employment relationship is ending. Casual employees also do not have to give notice to their employer when they resign.
Being excluded from NES notice does not mean a dismissal cannot be challenged. Eligible employees can apply to the Fair Work Commission about an unfair dismissal or a breach of the general protections, including where an employee dismissed for serious misconduct can show their conduct did not make employment during the notice period unreasonable.