Notice & Final Pay

We discuss some basic information that you should be aware of when reviewing your final pay to ensure you’ve been paid correctly.

What is the first thing I should do to determine what I’m entitled to?

We recommend you check the terms of your employment contract, modern award or enterprise agreement, and compare them with the minimums in the National Employment Standards in the Fair Work Act 2009 (Cth). You are entitled to whichever is more generous. The Fair Work Ombudsman’s notice and redundancy calculator is a useful check.

What are my notice entitlements?

Your employer must give you written notice of the day your employment ends, and a minimum period of notice or payment in lieu of it (s 117). Payment in lieu must be at least the full rate of pay for the hours you would have worked during the notice period.

Example:

Sally's employer did not give her any notice at all before dismissing her, and she has not been paid in lieu of that notice.

After obtaining advice, Sally learns that she was entitled to 2 weeks' worth of notice.

If Sally's employment had continued, she would have worked 40 hours per week for $40 an hour.

Conclusion: Sally is entitled to payment in lieu of notice of at least: 40 hours per week x $40 per hour x 2 weeks = $3,200.

How do I determine if my notice was paid correctly?

If you have a written employment contract, look at that contract to calculate your notice entitlements. There will usually be a section about notice.

Your contract may provide a greater notice period than what the Fair Work Act, or your State's statutory regime if it applies, would allow. In that case, you would be entitled to the greater amount in your contract.

You should receive a payslip for your final pay. If you apply for income support, Services Australia may ask your former employer for an Employment Separation Certificate. These documents help show whether your notice was paid correctly.

What if my contract doesn't say anything about notice or only allows a small amount?

Do not worry. The Fair Work Act provides a safety net. The Fair Work Act mandates at least a minimum amount of notice or payment in lieu. In other words, a contract can provide an employee a greater amount but not a lesser amount than the Fair Work Act.

The Fair Work Act applies to most employees. In WA, the notice of termination rules in s 117 also apply to employees in the WA state system, through s 759 of the Act. MKI Legal can help you work out which laws apply to you; see also our WA state system guide.

There might also be an enterprise agreement or an award that applies. These can provide greater amounts of notice but generally not lesser amounts than the Fair Work Act.

Example:

John has been dismissed.

After obtaining advice, John learns that the Fair Work Act applied to him, not the corresponding State system.

John also learns that he is entitled to 2 weeks' worth of notice under the Fair Work Act.

John's employment contract says that he is entitled to just 1 week's worth of notice.

There is no enterprise agreement that applies to John, but there is an award.

The award allows for 4 weeks' worth of notice.

Conclusion: John is entitled to at least 4 weeks' worth of notice.

What notice periods are required under the Fair Work Act?

The Fair Work Act requires the following minimum notice periods:

Employee's period of continuous service with the employer at the end of the day the notice is given	Minimum Notice Period
Not more than 1 year	1 week
More than 1 year but not more than 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks

If you are over 45 years old and have at least 2 years of continuous service at the end of the day notice is given, you get one extra week of notice, so the maximum minimum is 5 weeks.

Casual service does not count as continuous service for notice, and casual employees are not entitled to notice under the Act. The Act also excludes some others, such as employees on genuine fixed-term contracts and employees dismissed for serious misconduct (s 123).

Are there circumstances where the employment can be terminated without notice?

If you have been dismissed for serious misconduct, your employer does not have to give you notice or pay in lieu under the Fair Work Act (s 123).

Serious misconduct has its ordinary meaning, and includes wilful or deliberate behaviour that is inconsistent with the continuation of the employment, and conduct that causes a serious and imminent risk to health or safety, or to the reputation, viability or profitability of the business (reg 1.07 of the Fair Work Regulations 2009). It needs to be genuinely serious.

Some examples of what constitutes serious misconduct include:

Theft, fraud or assault;

Being intoxicated at work to the point of being unfit to do your job;

Refusing to carry out a lawful and reasonable instruction that is consistent with your contract;

Deliberate conduct that poses a serious risk to someone's health or safety.

If your employment has been terminated for serious misconduct, and your misconduct does not fall within the definition of "serious misconduct", you may be entitled to:

Claim the notice period you should have been paid, if that notice was not paid to you; and

Make an unfair dismissal claim.

Are there circumstances where the employment can be terminated without notice?

Is payment in lieu of notice different to redundancy pay?

Yes, and if you have been made redundant, you are entitled to notice, or payment in lieu of notice, and redundancy pay (unless an exclusion applies, for example if your employer is a small business). For more information, see our Redundancy Pay and Redundancy pages.

What else am I entitled to in my final pay?

You are also entitled to be paid your unused annual leave, including any leave loading your award or agreement says is payable on termination. This must be paid however your employment ends, including for serious misconduct.

You are generally not entitled to be paid any accrued sick leave upon termination unless your employment contract, enterprise bargaining agreement, or modern award expressly says so.

In WA, long service leave comes from the Long Service Leave Act 1958 (WA), which applies to national system and state system employees alike. It gives 8⅔ weeks after 10 years, and a pro rata payment on termination from 7 years of continuous service, unless the employment ended because of serious misconduct.

When should it be paid? Most awards require final pay within 7 days after your last day of employment. If no award or agreement applies, the general rule is that you must be paid at least monthly. See the Fair Work Ombudsman’s guide to final pay.

If your final pay is wrong or late, you can claim what you are owed, generally within 6 years. Contact us for a free discussion.

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