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Many countries require that an employer give “reasonable notice” of planned or impending employment termination to an employee. Countries and individual jurisdictions vary in their interpretation of what constitutes “reasonable notice.” In Australia, the traditional view is that where an employment contract is either silent on notice of termination or includes an inadequate period of notice of termination then the law implies a term requiring the employer to provide a “reasonable” period of notice of termination. The employee’s age, experience, tenure, seniority and likelihood of obtaining alternative employment are considered by courts to make this determination; it is generally accepted that older and more senior employees may be entitled to notice periods of up to 9 to 12 months where a term of “reasonable notice” is implied.
Recently, however, some court decisions have cast doubt on whether it is appropriate to imply “reasonable notice” in circumstances where legislation and industrial instruments provide for a period of minimum notice. For instance, the Full Court of the South Australian Supreme Court in its decision Brennan vs Kangaroo Island Council [2013] 120 SASR 11, refused to imply a term of reasonable notice where the employee was covered by a State Award which included a provision about the applicable notice of termination. This and other decisions appear to abrogate traditional notions of “reasonable notice.” On the other hand, decisions such as McGowan vs Direct Mail and Marketing Pty Limited [2016] FCCA 2227 seemingly support the traditional application of “reasonable notice.”
In light of apparently conflicting court decisions, what is an employer to do? Ally Law member firm Kemp Strang, based in Sydney, advises employers to assume the law of reasonable notice is very much alive, and contracts of employments should include an express clause dealing with notice of termination. Have your Ally Law member firm employment and labor lawyers review your employment contracts to assure they comply with current applicable federal and regional laws and best suit your business needs in order to avoid costly dispute with terminated employees. For more information about Ally Law member firm services in this area, contact us at team@ally-law.com.
Many countries require that an employer give “reasonable notice” of planned or impending employment termination to an employee. Countries and individual jurisdictions vary in their interpretation of what constitutes “reasonable notice.” In Australia, the traditional view is that where an employment contract is either silent on notice of termination or includes an inadequate period of notice of termination then the law implies a term requiring the employer to provide a “reasonable” period of notice of termination. The employee’s age, experience, tenure, seniority and likelihood of obtaining alternative employment are considered by courts to make this determination; it is generally accepted that older and more senior employees may be entitled to notice periods of up to 9 to 12 months where a term of “reasonable notice” is implied.”
Original article by Nick Noonan of Ally Law member Kemp Strang.
