Whether or not you saw it coming, an employee leaving can present a problem for your business. Even more so if they declare that they are leaving quite suddenly and do not intend on working their contractual or statutory notice period.
Your initial reaction is quite possibly going to involve pointing out a clause in a contract. Or you may have even gone the whole nine yards and signed off with – see you in court!
Once you are over the annoyance and inconvenience of it all, it is time to consider your next steps. These should probably be to work out how to keep business as usual, how to replace the departing employee and what preparations you can have in place should this happen again.
When It Comes To How Best To Deal With Your Sudden Leaver, See Below For Some Top Tips:
Seek First To Understand
Ask questions to understand why your employee wishes to leave at short notice. Are they joining another company who is pressuring them for an early start date?
If they have been a good employee and their position is relatively easy to fill, you may agree an early termination date and save yourself their pay during the normal notice period.
Alternatively, if they are leaving to join a competitor you could put them on garden leave. Or if you feel they would be problematic, pay them in lieu of notice. You’ll need appropriate clauses in their contract to do this
Notice Periods
The employee’s notice will depend on their length of service and contractual terms. The notice period starts the day after notice is given and ends on the last day of employment. The National Employment Standards (NES) provides minimum legal notice period lengths, dependent on the employee’s continuous services with the employer:
- 1 year or less = 1 weeks’ notice.
- More than 1 year up to 3 years = 2 weeks’ notice
- More than 3 years up to 5 years = 3 weeks’ notice.
- More than 5 years = 4 weeks’ notice.
Employees over the age of 45 who have worked in the business for at least two years will get an extra week of notice. Modern awards and enterprise agreements may also have minimum notice periods. Employment contracts and company policies can set the period of notice however they must be more favourable than the NES or an applicable modern award. Employers must always give notice in writing but depending on the registered award or EBA , the employee may be able to give notice verbally.
Casual employee’s, seasonal workers, people employed for a specific task or maximum fixed time period are employees where no notice period is applicable.
Safeguarding Your Obligations
If the employee doesn’t work out the agreed amount of notice period which will ultimately disrupt your business. You may have the right as the employer to withhold money from their final pay for the notice period they should have worked. However, this doesn’t include withholding any entitlements owed to the employee including any annual leave or wages that might be owed to the employee.
With 121 modern awards in Australia employers may be able to withhold up to 1 week’s wages for employees who are at least 18 years old. You will need to check the appropriate award, registered agreement or employment contract to see what rules apply. If deductions from pay aren’t allowed you have no choice but to pay the employee their owed entitlements.
Need To Know For Next Time
There are a few steps you can take to make your life a little easier should this happen again. These include having your contracts updated to ensure you are protected and have legally permissible choices to handle difficult situations.
Call Us Today For Expert Advice On Notice Periods
Would you like further discussion on what to do when an employee won’t work their notice, or to discuss the possibility of you not needing them to work their notice? Call your local HR Dept today and we will talk you through your options.