Navigating Resignations

By James Linn

Employee Relations Advisor

The COVID-19 Pandemic has created a number of human resources and employee
relations challenges over the past couple of years. Experts are now predicting that a wave
of resignations could sweep through Australia as employees realign their values and
chase careers more closely aligned with their passions. The flow on effect from this
period, to be known as the ‘Great Resignation,’ raises key questions about how to
appropriately deal with an employee when they resign. The Employee Relations Advice
Centre has recently received an influx of calls on the topic of resignations, and below we
discuss some of the most common questions.

Does my employee have to provide me notice?

When an employee voluntarily decides to end their employment, they are usually
required to provide a period of notice to their employer. The notice period commences
the day after the employee advises they wish to end their employment and ends on their
final day of employment.

An employee’s industrial instrument (award or enterprise agreement), or their contract
of employment, will generally set out how much notice an employee is required to
provide their employer if they resign.

It is recommended that you always request the employee put their notice in writing,
including their intended final date of employment. It is also best practice to accept and
acknowledge the resignation in writing, to ensure you have a clear record should a
dispute arise later.

What if my employee doesn’t provide the required amount of notice?

An employee and employer can mutually agree to a shorter notice period and in some
circumstances, this may suit both parties. In this scenario an employee would only be
required to be paid for the time they worked.

If an employee fails to comply with the required notice period, and an employer has not
agreed to a shorter notice period, an employer may be able to deduct from wages if
permitted by the relevant industrial instrument. In this scenario, it is important to check
the industrial instrument that covers the employee to determine if it is permissible to
deduct. If the award or enterprise agreement doesn’t allow deduction of pay when the
minimum amount of notice isn’t given, you must pay out all the employee’s entitlements.

It is important to note that if an industrial instrument does permit an employer to deduct
when the required notice is not provided, an employer can only deduct from an
employee’s wages and not from other entitlements such as annual leave and long service
leave.

Can an Employee take leave during their notice period?

An employee is entitled to use their annual leave during their notice period and as usual,
it is taken as per agreement between the employee and employer. An employer must not
unreasonably refuse an annual leave request.

Personal/carers leave is an entitlement an employee may use during their notice period,
if they are ill or injured themselves, or providing care and support to an immediate family
member. It is still important to ensure the employee continues to notify the employer as
soon as reasonably practicable and comply with any evidence requirements as per any
company policy.

What if I don’t want my employee to work out their notice period?

If the employer does not require or wish for the employee to work out their notice period,
they may agree to pay out notice in lieu. In this circumstance the employer would be
required to pay the employee their full wages as if they had performed work for the
duration of their notice period.

What needs to be in a final payment?

The final payment of an employee can comprise of an array of contractual, award or
enterprise agreement and legislative entitlements. These entitlements may include
wages, notice of termination (if paying in lieu), leave entitlements, such as annual leave
and long service leave and other contractual benefits.

An employee should be paid all entitlements within the first pay period following the
effective date of termination including any wages owing for time worked, unless a sooner
timeframe is specified by an industrial instrument (e.g. 7 days from final date of
employment).

Want to know more? Contact CCIWA’s Employee Relations Advice Centre team on 9365
7660 or email advice@cciwa.com

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