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Ask The Masters November 2017

November 8, 2017


Ask the Masters is where we share with you interesting HR questions we are asked along the way. If you have a specific question you would like to Ask The Masters – please email it to

Q: Do I have to pay notice period when employee resigns during probation?

A: Notice of termination from either the employee or employer is required based on the terms of agreement in the employment contract. Sometimes employers elect to include in the contract, different amounts of notice required from each party during a prescribed probation period.
In addition to whatever was agreed by the parties in the employment contact, under the Fair Work Act 2009 (Cth) the minimum notice period required by the employer during the first year of employment is one week. The Act does not require any notice to be provided by employees. Employers cannot ‘contract out’ of their obligations imposed under legislation.
In situations where the employee resigns during either the probation period or any time thereafter, they should provide their employer with the applicable notice as per their employment contract, and the employer does not have to pay out the remainder of the notice not served if the employee refuses to serve the full notice period. However, where the employee has provided notice and is expecting to work through the notice period the employer would be obliged to pay out the notice period if they do not require the employee to work through the notice period AND if the employment contract or applicable Award states the employer’s right to take this action. An exception may be where both parties have mutually agreed that they would prefer to separate before the completion of the notice period.

Don’t have employment contracts in place or time for a review to ensure they meet your company’s requirements? Don’t wait to get these important documents sorted. Submit your request to or call the central office (03) 9982 4665 and we’ll get right onto it for you

Q: An employee resigned yesterday without notice but has now shown up for work – can they do that?

A: Assess the situation and what led to the resignation. If you believe that it was not a situation of a “in the heat of the moment” resignation, the employee cannot retract the resignation unless you agree. You may need to speak with them to clarify their intent at the time and surrounding circumstance of the resignation. If they provide information to suggest it was a ‘rash’ decision in response to a situation, you would need to accept a rescinded resignation. Otherwise the employee may claim unfair dismissal.
The other possibility is that they may not have known to indicate when exactly they intend to resign or are unclear of the notice period required. It is advisable to clarify this with them and follow up with a letter confirming the resignation and termination date as per their intentions.

Need specific advice? Want to be able to pick up the phone and ask questions like this all the time with immediate answers? You’ll love our month to month remote HR Advisory service available anytime via phone and email. Enquire at or (03) 9982 4665.

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