When a staff member's employment is ending — whether you've initiated it or they've resigned — the first question is always the same: how much notice is required? The answer sits in three places: the National Employment Standards (NES) under the Fair Work Act 2009 (Cth), any applicable modern award or enterprise agreement, and the employee's contract. This article gives you the figures, explains how to combine those sources, and walks through a worked calculation so you can confirm the correct period for your situation.
The rule and where it comes from
The NES sets a minimum period of notice of termination that applies to most permanent employees covered by Commonwealth workplace laws. The obligation is on the party giving notice — employer or employee — though the NES table below applies specifically to employer-initiated terminations. The requirement is found in s 117 of the Fair Work Act 2009 (Cth).
Notice is based on continuous service with the one employer. Under s 22 of the Fair Work Act 2009 (Cth), continuous service generally excludes periods of unauthorised absence and certain unpaid leave. Importantly, time worked as a casual employee does not count towards continuous service for notice (or redundancy) purposes unless an award or enterprise agreement expressly provides otherwise. Only service as a permanent (full-time or part-time) employee counts.
The NES minimum notice table
For employer-initiated terminations, the NES minimum is:
| Employee's period of continuous service | Minimum notice |
|---|---|
| Less than 1 year | 1 week |
| At least 1 year but less than 3 years | 2 weeks |
| At least 3 years but less than 5 years | 3 weeks |
| More than 5 years | 4 weeks |
Extra week for older employees: If the employee is at least 45 years old and has completed at least 2 years of continuous service at the time the notice is given, the employer must add one further week to the applicable period above. This brings the maximum NES entitlement to 5 weeks. This extra week applies only when the employer gives notice — it does not arise when the employee resigns.
Awards, enterprise agreements and contracts: These instruments can increase notice beyond the NES minimum but cannot reduce it. If your contract specifies a longer period, you must honour the contract. The shortest valid notice period is always the NES figure.
Who does and does not receive NES notice
Most permanent employees covered by Commonwealth workplace laws are entitled to NES notice. The main exceptions are:
- Casual employees: Casuals generally have no entitlement to notice on termination under the NES, unless their award, enterprise agreement or contract specifically provides for it.
- Serious misconduct: Under s 123 of the Fair Work Act 2009 (Cth), notice is not required where an employee is dismissed for serious misconduct — conduct that is wilful, deliberate, or that poses a serious and imminent risk to health, safety or the business. The threshold is high: investigate the allegation thoroughly and document the findings before acting summarily.
- Fixed-term contracts: Where a genuine fixed-term contract ends on its specified date, notice is typically not required unless the contract provides for it.
Worked calculation
Scenario 1 — standard termination
Facts: You employ a full-time office manager, aged 38, who has worked for you for 4 years and 2 months on a contract that mirrors the NES. You are ending the role due to a restructure.
Step 1 — identify the period of service. Four years and two months sits in the "at least 3 years but less than 5 years" band.
Step 2 — apply the NES table. That band requires 3 weeks' notice.
Step 3 — check the 45+ rule. The employee is 38, so the extra week does not apply.
Step 4 — check the contract. The contract mirrors the NES minimum, so no uplift.
Result: 3 weeks' notice (or pay in lieu of 3 weeks, if your contract or applicable instrument permits).
Scenario 2 — older long-serving employee
Facts: You are ending the employment of a part-time bookkeeper, aged 47, who has been with you for 6 years. The applicable modern award does not add to the NES notice.
Step 1 — period of service. Six years falls in the "more than 5 years" band: 4 weeks.
Step 2 — the 45+ rule. The employee is over 45 and has more than 2 years of service, so add 1 week.
Step 3 — contract check. The contract matches the NES.
Result: 5 weeks' notice. Because the employee is part-time, pay during the notice period is calculated on their normal part-time hours, not a full-time rate.
Edge cases and carve-outs
- Prior casual service. If a casual employee converts to permanent, their earlier casual service generally does not count toward the continuous service period for notice or redundancy. The count starts from the commencement of permanent employment unless an award or enterprise agreement says otherwise.
- Breaks in service. Continuous service can be broken by unauthorised absences or by genuine termination and re-engagement. If service has been interrupted, calculate from the restart date, not the original start date — unless the break falls within a category that does not break continuity under the Act.
- Transfer of business. Where a business is sold or transferred, service with the old employer may count as service with the new employer for NES purposes in certain circumstances. This is a technical area and the specifics depend on whether the transfer was an associated entity transfer or an arm's-length transfer.
- Modern award uplift. Some awards (particularly in industries with higher staff-turnover risk) set notice periods above the NES or impose reciprocal notice obligations on employees. Always check the applicable award before issuing a notice letter.
- Payment in lieu of notice. Rather than requiring the employee to work their notice, you can end employment sooner and pay what the employee would have earned across the notice period (at their full rate, including applicable allowances). This must be authorised by the contract or applicable instrument. Confirm the payment in writing and process it through the final pay run.
Deductions where an employee doesn't give enough notice
If an employee resigns without giving the required notice, deductions from their final pay are not automatic. A deduction must be expressly authorised — either by the applicable modern award or enterprise agreement, or in writing under the requirements of s 324 of the Fair Work Act 2009 (Cth). Some awards allow an employer to withhold a capped amount (often up to one week's wages) where an employee fails to give required notice; many others do not. Check the specific instrument before making any deduction. Unlawful deductions can themselves expose you to an underpayment claim.
How Artificer Legal can help you confirm the right figure
Notice period calculations become more complex when service is mixed (casual then permanent), when multiple instruments overlap, when a business transfer is involved, or when you need to determine whether a particular dismissal is genuinely for serious misconduct. Getting the calculation wrong can expose you to unfair dismissal claims, underpayment liability, and reputational risk.
Artificer Legal's employment practitioners can confirm the correct notice period for your specific facts, review your employment contracts to ensure notice clauses are enforceable and appropriately calibrated, and advise on the process where serious misconduct is alleged. We can also help you build compliant templates and checklists so that future exits are managed consistently.
The number most likely to trip you up
The variable that most often causes employers to quote the wrong notice period is the assumption that all past service counts. It often does not. If a long-serving employee spent their first few years as a casual before converting to permanent, that earlier casual period is excluded from the continuous service count for notice purposes — unless your award or enterprise agreement says otherwise. An employee with eight years on payroll may have only five years of continuous service as a permanent, pushing their NES entitlement from 4 weeks to 3 weeks (and affecting the 45+ calculation too).
The key points to carry forward: the NES sets four service bands producing 1–4 weeks of notice; add one week if the employee is 45 or older with at least 2 years of service and you are the party giving notice; casual service does not count toward continuous service for notice; awards and contracts can only increase the period, never reduce it below the NES; and deductions for an employee's failure to give notice are not automatic — they require specific award or written authorisation under the Act.