Can an Employer Shorten Your Remaining Period When a Longer than Minimum Notice Is Given?

andrek on 06/03/2024 - 08:20

My wife decided to leave her current employer. Given the upcoming Easter holidays, it would be beneficial for us if her last day is 1st of April. The notice period in the contract is four weeks. She submitted her resignation on 1st of March stating that her last day will be 1st of April. The employer came back on Monday 4th March saying that they've made her last day 29th of March as that's exactly four weeks since the letter, so essentially she'll miss out on three days pay. Not the end of the world, but a few hundred bucks would cover a very nice day out.

So the question is can employers do that? I couldn't find a clear answer. Everything I found so far only talks about shortening the minimum termination notice, like cutting four weeks stated in the contract to three weeks. But couldn't find a clear answer about a case when a longer than required notice is given.

And if this is something that they can't do - where do I go to next, Fair Work?

Education & Work

Comments

  • Hybroid on 06/03/2024 - 08:24
    +125

    They have complied with the contract terms. 4 weeks from 1st March notice is 29th March.

    She should have submitted notice on Monday 4th to get a 1st April end date. The onus is on her unfortunately.

      • bargain crazy on 06/03/2024 - 08:35
        +50

        4 weeks is 28 days.. Resignation on 1st means 28 days notice finished at 29th.
        Are you confused with 4 weeks vs 1 month notice?

          • brendanm on 06/03/2024 - 08:50
            +36

            @andrek: Lol, rofl, lmao. You cannot just state to your employer that you will finish up in 3 months, if that's not what they want.

          • bargain crazy on 06/03/2024 - 08:50
            +8

            @andrek: It all depends on what is in the contract. If contract says 4 weeks then employer is adhering to that.
            I have seen people requesting for extended notice period, but that is discussed upfront and if agreed then only adhered too. Otherwise always go via what is in the contract.
            The link you referred to is for a scenario where an employee resigned and employer just saying "ok finish in 2 weeks". Under such circumstances employer still have to pay for the remaining 2 weeks.

          • mskeggs on 06/03/2024 - 08:50
            +46

            @andrek: If you exaggerate a little more you will have the answer. If she said, I resign with ten years notice, I think you would understand the employer would say "no, 4 weeks, as it says in the contract."

            Your wife offered to work an extra three days, but her employer declined.

              • mskeggs on 06/03/2024 - 09:05
                +35

                @andrek: Nobody is talking about termination, she has resigned.
                Maybe give her union a call and talk to their employment lawyer, but imagine if it ended up at a tribunal and she said, "I just wanted a couple of extra public holidays."

                  • brendanm on 06/03/2024 - 09:31
                    +41

                    @andrek: They may be able to teach you about common sense though, which would definitely be worth your time.

                  • Bargainitis on 06/03/2024 - 13:57
                    +10

                    @andrek: Wow OP.

                    Seriously, as others have said, you need to learn common sense.

                    What a chain of nonsense you have tried to debate others with.

                      • Willy Beamish on 08/03/2024 - 17:47
                        -1

                        @callum9999: You're surprised people on ozbargain are dumb and can't read? they always overthink what is clearly written and try to make themselves seem smarter than they actually are by going around the actual question to what they think is the question despite not being asked at all.

                • JimmyF on 06/03/2024 - 11:31
                  +5

                  @mskeggs:

                  "I just wanted a couple of extra public holidays."

                  If you look at the dates, the OP wife misses out on 1 paid day compared to what they wanted!

            • bargainhunter168 on 08/03/2024 - 11:42

              @mskeggs: Exactly, just think it through logically.

          • idonotknowwhy on 07/03/2024 - 15:40
            +5

            @andrek: Let me know if this works out. I so, I'm giving my employer 20 years notice so I don't have to worry about the job market anymore.

          • drfuzzy on 07/03/2024 - 18:06
            +5

            @andrek: You can do that, but they aren't obliged to follow it.
            Another common mistake is to get paid out for annual and long service leave.
            If you are paid out rather than use the leave you forfeit any superannuation or leave loading components.

          • CocaKoala on 08/03/2024 - 15:24
            +2

            @andrek:

            I should be able to tell my employer …

            Is that what's written on the contract?

        • Dollar General on 07/03/2024 - 16:27
          +10

          That link is from a 3rd party that thrives on creating uncertainty to get businesses confused and sign up

          • SlickMick on 07/03/2024 - 17:10
            -1

            @Dollar General: ah okay.

            I still reckon it's a crap action on part of employer, and I stand by the rest of my post.

            • drfuzzy on 07/03/2024 - 18:07
              +3

              @SlickMick: You are assuming the business values you above their bottom line.
              Rarely the case.

        • andrek on 08/03/2024 - 07:08
          -2

          Thinking more about it, the opposite point of view also makes sense. If I give a notice to the company, it's pretty much saying "I'm done, let's start working on the exit". And if I'm courteous/generous/sneaky and provide three months notice, from the employer point of view, if they feel they can wrap up with me in a shorter time period - they could say "thanks, but we can sort everything out in four weeks, no need for three months".

          It's still confusing though as some sources say they can't do it, while others say they can and Fair Work is not clear.

          • SlickMick on 08/03/2024 - 09:19
            +1

            @andrek: You're right. I'm really surprised. Well, note taken: always schedule the delivery of notice precisely according to the minimum notice date just to be safe.

          • hothed on 08/03/2024 - 11:08
            +3

            @andrek: I think your wife needs to see the doctor and go on stress leave. ;)
            Use all the sick leave entitlements you have.

          • bargainhunter168 on 08/03/2024 - 11:48
            +1

            @andrek: Where in this article, https://progressivelegal.com.au/workplace-law/notice-period-… does it say employers can't do it?

            Its pretty clear that they can.

            Upon receiving notice, you should review the employment contract or company policies to ascertain the agreed-upon notice period.

            This period can vary depending on the specific terms outlined in the contract or applicable employment laws. You should ensure that the employee’s stated notice aligns with these established requirements.

            That suggests to the employer to check the period and ensure it is aligned with the contract.

        • bargainhunter168 on 08/03/2024 - 11:44
          +1

          You can't just withdraw a resignation lmao. It needs to be agreed by the company.

          • SlickMick on 08/03/2024 - 14:18

            @bargainhunter168: Like negotiating an alternative end date?

            • bargainhunter168 on 08/03/2024 - 15:59
              +4

              @SlickMick: Yes, like negotiating an alternative end date that is longer than the minimum notice period given in the contract. The later date needs to be agreed by the company, you can't just unilateral set it and make the company bound by it.

              Otherwise people can just resign and set the notice period to 20 years, problem solved, can never be fired now. Nice hack.

              • SlickMick on 08/03/2024 - 17:19
                +2

                @bargainhunter168: I've never worked for a company that I'd be willing to lock in for 20 years. Apparently there is nothing to stop an employer from dismissing you whilst your on notice either, so doesn't seem much of a hack.

              • ddilrat on 09/03/2024 - 15:44

                @bargainhunter168: They can still terminate you before the 20 years…

    • ozboygsl on 07/03/2024 - 09:37
      -5

      wrong

      • Hybroid on 07/03/2024 - 11:10

        Elaborate.

    • ddilrat on 08/03/2024 - 07:09
      -1

      Wrong

      • Hybroid on 08/03/2024 - 08:44

        Elaborate.

        • ddilrat on 08/03/2024 - 12:32

          It's simple. They can't just change your last day unless they are going through the process of actually terminating you and then they have to give the contractual notice

          • Hybroid on 08/03/2024 - 14:22
            +5

            @ddilrat: They haven't changed the last day.

            The last day is 4 weeks from the day of notice as per the contract.

            Both parties absolutely can negotiate a different end date, either earlier or later, but there's no obligation on either party to accept beyond: 4 weeks from notice in contract.

            This is very simple contract stuff.

            • ddilrat on 09/03/2024 - 15:39

              @Hybroid: I don't know how people can't grasp this.

              I've resigned before and given 8 weeks notice and the employer was not suddenly able to reduce that down to 4.

              It's a minimum. Key word minimum.

              As an employer you can't reduce someone's employment time because you're shitty at them for leaving etc…

              • Hybroid on 09/03/2024 - 16:36
                +2

                @ddilrat: You can mutually agree anything you like, but if your contract states 4 weeks, that's all the employer is obliged to uphold.

                You don't get to dictate terms beyond that, unless they are willing to agree to it.

                Contracts do not normally state "minimum". By definition a contract should be clear cut to be legally enforceable.

                Example: https://files.ozbargain.com.au/upload/255280/110997/terminat…

                4 weeks means 4 weeks contractually. You can agree anything else separately, but neither party is bound to agree anything else but 4 weeks. That works both ways, if the company wants you to stay for 8 weeks because they cannot find a replacement, then you're not obliged to. 4 weeks is your only obligation.

          • bargainhunter168 on 08/03/2024 - 15:59
            +2

            @ddilrat: But you've resigned, that's you saying you want to terminate the employment contract

            • ddilrat on 09/03/2024 - 15:36
              -3

              @bargainhunter168: Yeah it's still not the same thing. You've said you want to terminate it on a given date….the date is still binding

              • mattmel96 on 10/03/2024 - 07:58
                -1

                @ddilrat: No it is not. The giving of notice is you resigning. The date is as per the contract, i.e., 4-weeks. If either party has requested a variation then that needs to be negotiated and agreed by both parties.

                The company does have the right to put you on gardening leave, where they still pay you for your 4-weeks but do not require you to attend the workplace, but the employee doesn't have the right to mandate a variation to the cessation date.

    • kaleidoscope on 09/03/2024 - 01:19
      +3

      /thread

      When OP realises it’s a business, not a charity, this thread will be closed.

    • prozerran on 10/03/2024 - 12:53
      +1

      Herein lies the issue with HR laws and the complexity in Australia - so much red tape.

      OP has said she resigns and the last day is 1st April. If the employer does not accept this then the resignation is not binding. If the employer says your last day is 29 March OP can say no thank you (as it is her decision to resign on 1 April not 29 March). She can then again put a date exactly 4 weeks from the date on the new resignation letter. Alternatively the employer can say I terminate you 4 weeks (or whatever the minimum is) but there may be more HR complications and redundancy and other HR implications. But honestly is it worth it, do you want to leave on bad terms with a poor reference and bad relationship

  • kyle on 06/03/2024 - 08:25
    +20

    So she should have tendered her resignation three days later?

    • andrek on 06/03/2024 - 08:45
      -1

      I'm pretty sure we would avoid any issues above by doing so :(

  • apu on 06/03/2024 - 08:36
    +17

    What do you mean can employers do that? Comply with the contract? Just because your wife specified a last day in her notice doesn't make it binding (e.g. what if she said in her notice, that her last day is 20 April). What is binding is the terms of the contract.

      • apu on 06/03/2024 - 14:51
        +12

        The notice period in the contract is four weeks. She submitted her resignation on 1st of March stating that her last day will be 1st of April.

        The part of the contract which says the notice period in the contract (which you have said) is 4 weeks = 28 days. So it's 28 days from the date of the notice, being 1 March. There is no termination here.

        What I saying is the line about her "stating" something in her resignation letter is not binding. Her statement would simply be viewed as a request.

        • bargainhunter168 on 08/03/2024 - 11:49
          +8

          She requested to work the extra days to 1st April, the employer declined, its as simple as that.

  • brendanm on 06/03/2024 - 08:51
    +30

    "Dear employer, I am resigning, my notice period is 4 years, you cannot make me leave before then, love always, Brendanm."

    Yep, that checks out as making sense.

    • star-ggg on 06/03/2024 - 09:52
      +1

      you left out the "otherwise I'm going to sue your a$$" part

      • SuperLate on 08/03/2024 - 01:14

        Request to sue for 'Aussie Dollars' doesn't happen often !

  • caramellokoala on 06/03/2024 - 08:57
    +28

    Holy entitlement batman

    Businesses are only required to accept the legally-imposed minimum notice period. If an employee provides a longer notice period than required, then the business can refuse to accept the longer period and instead ask them to finish up at the end of the legally-required minimum period instead. Which is what is happening here

    Don't blame them for your wifes stuff up.

      • caramellokoala on 06/03/2024 - 09:20
        +25

        Fairwork.. You know the place you should have headed first instead of a bargain forum.

        https://www.fairwork.gov.au/ending-employment/notice-and-fin…

        • smpantsonfire on 08/03/2024 - 03:27
          +4

          This link is incorrect. The employer is not dismissing OPs wife.

          • Relapse on 08/03/2024 - 10:58

            @smpantsonfire: 100% an employee can tender their notice without reason - an employer cannot just terminate an employment, there needs to be a reason and resignation is not a justified one. A lot of the advice in this thread seems extremely dubious.

      • brendanm on 06/03/2024 - 09:32
        +21

        why won't everyone spoon feed me

        • randomusername2017 on 06/03/2024 - 11:15
          +2

          That's the wifes' job..
          Three days early ..he's hungry again now.

      • richadam on 06/03/2024 - 11:46

        Contract law 101…

  • OMGJL on 06/03/2024 - 09:00
    +6

    essentially she'll miss out on three days pay. Not the end of the world

    There, you answered yourself.

      • SpainKing on 08/03/2024 - 12:11
        +5

        The downvotes say no but the number of comments says yes

  • JimmyF on 06/03/2024 - 09:04
    +11

    so essentially she'll miss out on three days pay. Not the end of the world,
    And if this is something that they can't do - where do I go to next, Fair Work?

    LOL wanting to take them to fair work over 3 days pay for complying with the contract.

    The employer came back on Monday 4th March saying that they've made her last day 29th of March as that's exactly four weeks since the letter

    And what did they say when your wife said she would like to work until xyz instead?

    But honestly, move on, if you and your wife wanted her to work till that date, you should have timed your letter better.

      • JimmyF on 06/03/2024 - 09:50
        +11

        I love OZB community for the no BS feedback ;)

        You tried to game the system to get a paid public holiday in there and lost.

        they've made her last day 29th of March as that's exactly four weeks since the letter, so essentially she'll miss out on three days pay.

        This isn't true unless your wife worked shift work and would work on the weekend. The 29th is a Friday and a public holiday, there is a Sat and Sun normally unpaid in most jobs unless you work so not missed paid days as claimed and the 1st when you wanted to finish is shock a public holiday.

        As far as your wife is concerned, the 28th of March will be their last day regardless if they finished when you wanted or when the company wanted.

        They are paid up to the 29th March, so when you factor the weekend in, they miss out on 1 days pay.

        So based on this, honestly I agree with the company, you tried to game the system to scam some paid holidays out by long dating your end date to include the long weekend and finish on the public holiday/Monday.

        Complaining about it, is certainly a storm in a tea cup.

  • original15 on 06/03/2024 - 09:30
    +3

    29 march, 1 April public holidays.
    So she finishes on the 28th but gets paid for the 29th? Should be happy with that

    • JimmyF on 06/03/2024 - 09:51
      +2

      and when you look at the calendar the OP wife misses out on 1 days day, being the 1st April. the other 2 days of the '3 days' of pay missed out are the weekend!

  • barge-in hunter on 06/03/2024 - 09:32
    +2

    Does your wife’s contract state:
    “4 weeks notice” - in which case even if someone thinks it’s unlawful, it’s not worth chasing, or
    “A minimum of 4 weeks notice” - in which case, they’re not abiding by the contract, it’s bad practice by the company… but it’s still not worth chasing

    Industries are small in Australia. The value of exposing unfair employment practices for 3 days pay may cost more than 3 days pay when she’s applying for the next role

    • smpantsonfire on 08/03/2024 - 03:34

      This is the most important question in this thread. I love how all the „professionals“ are skipping over it.

      • Typical16-bitEnjoyer on 08/03/2024 - 05:36
        +2

        Way to misinterpret the common meaning of 'minimum'.

  • DashCam AKA Rolts on 06/03/2024 - 09:33
    +7

    O.P.'s partner: I resign, but extend the end date of mandated notice to include public holiday. (FTW)
    Employer: 4 weeks notice accepted. End date before public holidays, as per contract.
    O.P: Not like that. (Surprised Pikatu face). How can I complain to get cOmPeNsAtiOn?

  • elgrande on 06/03/2024 - 09:56
    -1

    Time to call their bluff and raise it - call in sick for the last 3 days..

    • DarkOz on 06/03/2024 - 09:59
      +4

      Call in sick every second day until her sick leave is all used up. That's the only option she has to get revenge, I think.

      • hothed on 08/03/2024 - 11:04
        -1

        This.

        If they are going to fk you around. Play them at their own game.

        Sick leave is yours, not the companies.

  • DarkOz on 06/03/2024 - 09:58
    +4

    Wish you were right OP, so I could hand in my resignation with 20 years notice. My employer surely can't terminate my employment earlier than the date I have specified.

  • bobbified on 06/03/2024 - 10:33
    +7

    stating that her last day will be 1st of April.

    This was the mistake. She would've been fine if she said her last day would be a day or two after and not on the actual public holiday.

    I've deliberately done this over the Christmas period a couple of times, but I've never attempted to have my last day on a public holiday because the intentions are just too obvious. It was always a day or two after (and that's when I would plan my handovers for)

  • JimmyF on 06/03/2024 - 11:13
    +11

    because the intentions are just too obvious

    Yep, OP's wife tried to get the Fri and Mon which are public holidays paid out. I love it how the OP is trying to spin it like they gave the company 'extra' time. Either way the last day of work is the 28th March, regardless of who's end date you want to use, the companies or the OPs. So no extra working time.

    It would have worked if they held out a couple of days before resigning so the 4 weeks was the Monday, but they didn't

    • richadam on 06/03/2024 - 11:50

      Yep 100%, it's not like they will be working the extra few days. They just wanted the public holidays paid out as well.

  • Mechz on 06/03/2024 - 12:08

    Live and learn, enjoy the long weekend and whatever comes next.

  • Drakesy on 06/03/2024 - 12:14
    +5

    "You can't fire me because i quit!, just i will work until this set day which conveniently is a public holiday and you're not allowed to tell me otherwise even though it's not up to me to dictate my final day because you've complied with your contractual requirements."

  • Dollar General on 06/03/2024 - 12:16
    +5

    Step 1: Look at a calendar
    Step 2: Find Friday 1st March
    Step 3: Go to the 4th Friday after March 1st & you will see it lands on March 29th

  • Stewardo on 06/03/2024 - 12:32
    +2

    Maybe spend three days plotting an Easter egg hunt for the kids.
    Just move on with your life.

  • Seraphin7 on 06/03/2024 - 12:41
    +4

    FMD.

    At least you're admitting you're trying to squeeze "a few hundred bucks" out of the employer. Unfortunately, the employer has spotted this within about a nanosecond and determined they don't require your wife's labour over the Easter weekend (would she even actually have been working or were you just hoping for the PH payout?).

    C'mon man, you know you're trying to pull a swifty and been called on it.

    As others have said, if you really want to time your run, you need to actually do that, not just look to get a cuppla days tacked on 'cause … you know … you'd like a few hundy extra.

    • arcticmonkey on 09/03/2024 - 16:26

      "Pull a swifty"?

      How many stadiums has OP sold out?

  • Sterio on 06/03/2024 - 12:54
    +1

    “I know this is likely the option we'll choose at the end, too much hassle for three days pay. I love OZB community for the no BS feedback ;)”

    Hello, anyone there?

    Please enlighten me what your other option are?

  • JIMB0 on 06/03/2024 - 13:37
    +1

    I remember some awards have a rule where they are liable to pay you for any public holidays that fall within 10 days of termination.

    • Muzeeb on 06/03/2024 - 13:49
      +5

      termination

      OPs entitled, poor researching, lack of common sense wife is resigning and not being terminated.

      • Kramo on 06/03/2024 - 14:35
        -4

        They're resigning on 1st April. By bringing that date forward, isn't that now termination?

        • brendanm on 06/03/2024 - 17:25
          +8

          You are op should be friends.

          • Kramo on 06/03/2024 - 17:43

            @brendanm: No, because I wouldn't be friends with someone who comes to a bargain forum for legal advice.

            Regardless, it doesn't sound quite as straightforward as everyone assumes, in that if the employer doesn't want you to work for the provided notice period, they can 'come to an agreement' about what happens, and getting the pay for the required period.

            So if I was on a bargain forum and not a legal advice forum, I'd suggest a fun idea would be proposing that the 'agreement' is 4 weeks from the employers notification date. But this is a bargain forum, so OP can do what they like, but should talk to a lawyer.

            • brendanm on 06/03/2024 - 18:39
              +2

              @Kramo:

              Regardless, it doesn't sound quite as straightforward as everyone assumes, in that if the employer doesn't want you to work for the provided notice period, they can 'come to an agreement' about what happens, and getting the pay for the required period(library.fairwork.gov.au).

              That has nothing to do with OP, that is if the employer doesn't want them there for the notice period.

              OP wants to force the employer to employ his wife for a number of days after the notice period ends, just to get paid out public holidays.

              • Kramo on 06/03/2024 - 19:27
                +2

                @brendanm: OPs intentions notwithstanding, since I don't really care about the dodginess of 'why' in this case. Why is the 'notice' period magically the 'minimum required' notice period after the employer's letter? The notice period was given as one calendar month, great than the minimum required of 4 weeks by the contract.

                The employer doesn't want the OP's wife there for the notice period, which is 31 days in this case, not 28 days. As per the fairwork link above, the options are either:

                • come to an agreement with the employee to stop working
                • end the employee's employment

                I'm not saying the business isn't within their rights to end the OP's wife's employment, but they can't do it on 25 days since their notice on the Monday, nor unilaterally reduce the notice period without coming to an agreement. IANAL, so aside from the fun of posting, if OP wants actual outcomes (and to be kinda dodgy), they can bring it up with one.

                • Dollar General on 06/03/2024 - 19:38
                  +3

                  @Kramo: Contract says 4 weeks & employer is complying. End of story.

                  You can’t nominate a date beyond that unless by mutual agreement

                  • Kramo on 06/03/2024 - 19:57
                    +7

                    @Dollar General: The notice period in an employment contract is the minimum required for either party. OP's wife gave their notice period, longer than the minimum required. If the employer wants to unilaterally reduce that period "it constitutes to the employer terminating the contract and therefore would have unfair dismissal risks attached.". Does that mean the employer can't do it? Sure they can, but if they want to do it without coming to any mutual agreement:

                    • they're now the one providing notice to OP's wife, and that comes with all the termination/notice rules attached, and
                    • the date for the start of this notice period would be the date they gave their notice, the 4th of March.
                    • brendanm on 06/03/2024 - 19:58
                      +2

                      @Kramo:

                      they're now the one providing notice to OP's wife, and that comes with everything attached, and

                      No, they aren't. They are enforcing the 4 week notice period that is part of the contract.

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