How much notice do I have to give to terminate someone?

The minimum is one to five weeks, set by the employee's length of service and their age, under section 117 of the Fair Work Act 2009 (Cth). You can either let them work that notice or pay it out instead, but you cannot do neither, and an award or a contract can require more than the minimum.

First, the thing people keep getting wrong

Several employers have asked us the same question in almost the same words: "I have to give two weeks. Is that two weeks of work, or two weeks of pay on top?"

It is one or the other, not both.

Section 117(2) gives you two ways to satisfy the same obligation. You can give written notice and have the person keep working until the termination date. Or you can pay them in lieu of notice, which section 117(2)(b) sets as at least what you would have been liable to pay at their full rate of pay for the hours they would have worked had the employment continued to the end of the notice period. You can also mix the two: work part of the notice, pay out the rest.

What you cannot do is treat the notice period as a sum of money owed on top of a worked notice period. If someone works out their two weeks, you pay them for those two weeks as ordinary wages. There is no further two weeks of pay.

The confusion usually comes from redundancy. Redundancy pay is a separate entitlement under the same Division of the Act, and it is paid in addition to notice. So an employee being made redundant may well receive both. An employee being terminated for performance, after a proper process, does not.

The minimum notice periods

Section 117(3)(a) sets the period by the employee's continuous service with you at the end of the day the notice is given:

• 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.

  
  

Then section 117(3)(b) adds one more week if the employee is over 45 years old and has completed at least 2 years of continuous service with you at the end of the day the notice is given. Both conditions have to be met. A 50 year old with 18 months of service does not get the extra week. A 46 year old with six years of service gets four weeks plus one, so five.

Two details worth holding onto. The test is applied at the end of the day you give the notice, not at the termination date, so the clock stops the day you hand it over. And section 117(4) says continuous service for this purpose does not include periods of employment as a casual employee. If someone worked as a casual for two years and then went permanent eight months ago, their notice entitlement is built on the eight months.

The notice has to be in writing

Section 117(1) says an employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination, and that day cannot be before the day the notice is given.

So a verbal termination does not meet section 117, however clearly it was said. Write the letter, state the last day, and keep a copy.

This is a floor, not the answer

Section 117 sets a minimum period of notice. It does not stop a modern award, an enterprise agreement or an employment contract requiring more, and plenty do. If your contract says four weeks and the Act says one, four weeks is what you owe.

This is where small employers get caught. They look up the NES figure, see one week, and give one week, without opening the contract they issued or the award that covers the role. The NES figure is the lowest lawful number, not the correct one for your situation. Check the contract and the award first, every time, and apply whichever is highest.

When notice does not apply at all

Section 123(1) takes some employees outside this part of the Act entirely:

An employee employed for a specified period of time, for a specified task, or for the duration of a specified season.

An employee whose employment is terminated because of serious misconduct.

A casual employee.

An employee, other than an apprentice, to whom a training arrangement applies and whose employment is for a specified period of time or is limited to the duration of the training arrangement.

Section 123(2) closes the obvious loophole on the first one. If a substantial reason for employing someone on a fixed term or fixed task basis was to avoid these provisions, the provisions apply anyway.

Section 123(3) then excludes a few further categories from the notice rules specifically, including a daily hire employee in the building and construction industry, a daily hire employee in the meat industry working in connection with the slaughter of livestock, and a weekly hire employee in the meat industry whose termination is determined solely by seasonal factors. The building and construction one matters in South Australia more than most places, and it is narrow: it is daily hire, not every subcontractor and not every labourer.

The serious misconduct exception is the one that gets misused

It is the only exception most employers remember, and it is the one most often reached for in the wrong moment. Section 123(1)(b) removes the notice obligation where the employment is terminated because of serious misconduct. It does not define serious misconduct down to whatever the employer found most annoying that week, and poor performance is not serious misconduct.

Two further things it does not do. It does not remove your obligation to pay accrued entitlements. And it does not make the dismissal fair: unfair dismissal is a separate question under a separate part of the Act, and getting the notice right does not protect you there.

If you are not certain the conduct meets the threshold, giving notice or paying it out is the cheaper mistake.

A short checklist before you send the letter

Open the contract and the applicable modern award, and find the notice clause in each.

Work out continuous service as at the day you will hand over the notice, excluding any casual period.

• Check age and service against the extra week.

• Apply whichever of the NES, award and contract figure is highest.

• Decide whether they work the notice or you pay it in lieu, and say which in the letter.

• Put the last day in writing.

Where this was checked

The notice periods, the extra week, the written notice requirement and the exclusions above were checked against the consolidated text of the Fair Work Act 2009 (Cth) on AustLII on 6 October 2026, at sections 117 and 123. The Fair Work Ombudsman publishes a plain English version at fairwork.gov.au and a notice and redundancy calculator, which is worth running as a cross-check on a real case.

Notice is one of the few parts of the Fair Work Act where the rule is genuinely simple and the mistakes are still constant, because people apply the Act and ignore the contract sitting in their own filing cabinet. If you want someone to look at the contracts and award coverage you have before you need them, that is what an HR audit is for. P&P Consulting works with South Australian employers on exactly this.