Notice of Termination in Australia: The NES Scale and the Over-45 Extra Week

Notice of termination under the Fair Work Act 2009 (Cth) is a National Employment Standards minimum, from 1 week up to 4 weeks based on length of service, plus an extra week if the employee is over 45 with at least 2 years' service, and it can be paid in lieu.

This article addresses notice of termination under s 117 of the Fair Work Act 2009 (Cth), one of the National Employment Standards, current as at 19 July 2026. It does not address redundancy pay, a separate entitlement covered on recordinglaw.com's redundancy pay guide, or unfair dismissal, covered on recordinglaw.com's unfair dismissal guide.

What Notice of Termination Means

Section 117(1) of the Fair Work Act requires an employer to give an employee written notice of the day their employment will end before terminating it, and that notice cannot specify a day earlier than the day the notice is actually given. Section 117(2) then requires that the gap between giving that notice and the termination date be at least the minimum period worked out under the statutory scale, or that the employer instead pay the employee an amount in lieu of notice at least equal to what the employee would have earned at their full rate of pay for the hours they would have worked during that minimum notice period had employment continued. Notice of termination exists to give an employee either practical warning to find alternative work, or the financial equivalent of that warning period, before their job ends.

The NES Notice Scale

Section 117(3)(a) sets the minimum notice period by an employee's period of continuous service with the employer at the end of the day the notice is given. As with redundancy pay, periods of casual employment do not count toward this continuous service calculation (s 117(4)).

The Extra Week for Employees Over 45

Section 117(3)(b) adds a further week to the period worked out from the table above if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer, both assessed as at the end of the day the notice is given. This means an employee aged over 45 with, for example, 6 years' service is entitled to 4 weeks under the base scale plus the additional week, 5 weeks in total, rather than 4. The age and service conditions are both assessed together at the same point in time, the day notice is given, not separately at different dates.

Payment in Lieu of Notice

An employer does not have to have the employee physically work out the notice period. Section 117(2)(b) allows the employer to instead pay an amount in lieu of notice, calculated at the employee's full rate of pay for the hours the employee would have worked had they worked through to the end of the minimum notice period. This is common where an employer wants an employee to leave immediately rather than continue attending work during a notice period, for example for confidentiality or workplace management reasons; the employee is paid out the equivalent value rather than physically serving the notice. A payment in lieu must reflect the full minimum period the employee was entitled to, including the extra week for employees over 45 where it applies.

Notice and Redundancy Pay Are Separate Entitlements

Notice of termination and redundancy pay are assessed under different provisions of the National Employment Standards and generally both apply together where a position is made redundant. An employer ending employment because a role is genuinely redundant must still give the correct notice (or pay in lieu of it) under s 117, in addition to any redundancy pay owed under s 119, calculated on the entirely separate scale covered on recordinglaw.com's redundancy pay guide. Neither entitlement substitutes for the other, and a business that pays redundancy pay but skips notice, or vice versa, has not met its full NES obligations.

Summary Dismissal for Serious Misconduct

Section 123 of the Fair Work Act sets out situations in which the notice requirement under s 117 does not apply, the most significant being summary dismissal for serious misconduct. Where an employee is dismissed for conduct serious enough to justify immediate dismissal without notice, such as theft, fraud, or conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer's business, the employer is generally not required to give notice or pay in lieu of it. Whether particular conduct meets that threshold is assessed on the facts and is a common area of dispute; simply labelling a dismissal as being "for serious misconduct" does not by itself establish that the s 123 exception applies.

The NES Notice Period Is a Minimum

Section 117 sets the floor. A modern award, enterprise agreement or individual employment contract can specify a longer notice period than the NES minimum, and where one does, the more generous provision generally applies instead of the bare statutory scale. It is worth checking any applicable award, agreement or written contract before assuming the NES table above is the final word on the notice owed in a specific case.

Using the Notice Period Calculator

recordinglaw.com's Australia notice period calculator applies the s 117(3) scale above, including the extra week for employees over 45 with at least 2 years' service, to estimate the minimum notice period from a length of service and age. Its output is an estimate of the statutory minimum only; an applicable award, enterprise agreement or contract may provide for longer notice, and the summary dismissal exception under s 123 may mean no notice is required at all in a specific case.

This article provides general legal information about the Fair Work Act 2009 (Cth) and, where noted, state and territory long service leave legislation, current as at 19 July 2026. It is not legal advice and does not account for your individual circumstances. Figures are stated for the 2026-27 financial year and are re-indexed on 1 July each year; the applicable figure for a dismissal or termination is usually the one in force on the date it took effect, not the date you read this article. For advice about a specific situation, consult a legal practitioner admitted in the relevant Australian state or territory.