You may have seen on the internet some daring employees who choose to provide their employer’s notice of their resignation by interpretative dance, song and even cake! Whilst there are many ways that an employee can notify their employer of notice – what happens in circumstances where an employee does not provide proper notice of their resignation?
This is certainly a frustrating situation for many employers as they are left in the lurch by employees who simply walk out without regard for their contractual or statutory entitlements.
One employer recently took the point and commenced proceedings against an employee who left without giving the proper notice.
In Jetgo Australia Holdings Pty Ltd v Goodsall (No 2) [2015] FCCA 1911 (3 July 2015), the Employee was employed as a pilot on an employment contract that required 8 weeks’ notice. However, as the employee was covered by the Air Pilot Award 2010 (Award) he was only required to provide 2 weeks’ notice (in accordance with the National Employment Standards found in the Act). In this case, the Employee resigned without providing any notice at all.
As a result, Jetgo brought proceedings in the Federal Circuit Court of Australia (the Court) alleging a breach of the Act on the basis the Employee did not provide the minimum required notice. The Court found in favour of Jetgo and ordered the Employee pay a penalty of $2,550 to the Commonwealth.
While we are confident that there must have been plenty going on behind the scenes of this matter – generally the cost of litigation for the potentially very small return acts as a deterrent to employers frustrated by their employees leaving without proper notice. Regrettably, there is no easy (cost effective) way to respond to these situations – other than where the employee is covered by a helpful Modern Award.
Some Modern Awards allow for employers to deduct an amount equivalent to the value of the notice the employee failed to provide from the employee’s termination pay. This is good in circumstances where it is available provided that there is sufficient termination pay to allow the deduction to be effected.
Otherwise, employers are left considering their options about suing the employee for breach of contract and to recover the costs of putting someone else in the role to work during the period where the employee should have worked through the notice period.
Perhaps Jetgo’s case will serve, at least temporarily, as a reminder to employees that they also have obligations in relation to giving notice – as does the employer. Perhaps the inconvenience to the employee of being dragged through a Court case and then having everyone talk about the matter is a more practical deterrent!
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