Giving Resignation Notice over Holiday Period

JDearyMe on 22/11/2024 - 10:35

Hi all!

I recently submitted my notice of resignation to my company. I have leave scheduled for the 20th of December till the 3rd of Jan, so in my resignation letter i stated my final day of employment with the company will be the 3rd of Jan.

HR has gotten back to me and said actually my final day will be the 20th of December. This is clearly to avoid paying public holidays over the Christmas period. I could have waited and submitted my notice 4 weeks before 3rd of Jan but I chose to do it now out of good faith and the company has definitely not acted in the same way.

My question is, am I able to enforce the Jan 3rd end date if that's what I've specifically stated in my letter? Are the able to force me to leave early and only pay till 20th of December?

Any help appreciated.

Thanks!

Education & Work

Comments

  • SpicyStew on 24/11/2024 - 14:33

    there is no such thing as moral law or policy.

    there is no law to say you cannot give notice and leave on the day.
    employee policies are only effective if you're an employee.
    find better references or do without and sell your skills instead.
    it's business.

  • Daabido on 24/11/2024 - 14:41
    +2

    I can't wait to resign one day, for good. That will be a sweet day.

  • d4nkasme on 24/11/2024 - 18:01
    +2

    not sure of your relationship with team \ manager but if you dont care then take some sick days to make it fair :)

  • UFO on 24/11/2024 - 18:28

    Rookie mistake.

    You giving more than the required notice means they can bring it back to the minimum period, and yes… not have to pay you over Christmas Stand Down.

    There's no nice or loyalty in business, those days are long gone. If you're going to leave a job, and there's public holidays in the mix, WAIT.

  • AccuracyAdvocate on 24/11/2024 - 18:52

    I'm a bit disappointed with the quality of Ozb comments.
    The employer can make your last day of employment 20 Dec but they will have to pay you out your notice period, i.e. until 3 Jan. You just lose the annual leave you would accrue during the notice period you are no longer working. You need to be clear on what they are doing. They can't change the effective date of resignation, they would have to make you redundant (which would be fishy). (Edit: reword)

    From fairwork:
    *The employee’s employment continues unchanged during the notice period. This is the case even if the employee gives more than the minimum period of notice.
    …..
    The last day of the employee’s employment is the last day of their notice period, unless this date is varied by mutual agreement between the employer and employee, or the employer terminates the employee’s employment during the notice period.

    The last day of the employee’s employment is the last day of their notice period.
    …….
    Ending the employee’s employment
    If an employee resigns and provides their employer with the required notice period (or more than the required notice period) and the employer doesn’t require the employee to work out the notice period, the employer can terminate the employee’s employment before the end of the notice period, and provide them with the full period of required notice or a ‘payment in lieu of notice’.

    Before ending an employee’s employment during their notice period, an employer should consider all of their obligations. An employer should also be aware that an employee may be able to dispute a decision to end their employment through claims such as:

    unfair dismissal
    breach of general protections
    unlawful termination
    breach of contract.
    For more information on ending employment, see Ending employment - Fair Work Ombudsman.*

    • snirodha on 24/11/2024 - 19:33

      So from what i understand this is what HR is doing. They keep op for his/her sufficient notice period and terminating the contract. Op has decided to give 6 weeks or more instead of 4 weeks. HR only required to accompany him for the required notice period.

      If not i can resign 3 months ahead or even years ahead and enjoy guaranteed pay.

      • serpserpserp on 24/11/2024 - 20:30

        If not i can resign 3 months ahead or even years ahead and enjoy guaranteed pay.

        Exactly. I might do that tomorrow. Just resign 30 years ahead of retirement, you can't not pay me though, I'm in my notice period!

        • akashra on 24/11/2024 - 20:40

          You still need to work that period - and any termination is still subject to unfair dismissal laws.

          • snirodha on 24/11/2024 - 20:51
            +1

            @akashra: If an employee resigns and provides their employer with the required notice period (or more than the required notice period) and the employer doesn’t require the employee to work out the notice period, the employer can terminate the employee’s employment before the end of the notice period, and provide them with the full period of required notice or a ‘payment in lieu of notice’.

            Key word here is required notice period.

            Assuming op gave 6 weeks but as per contract required notice period is 4. HR can say no thanks but u can leave in 4 weeks.

      • AccuracyAdvocate on 25/11/2024 - 14:13
        -2

        snirodha: Your understanding is wrong, try again. Read more carefully.

        • TightAl on 25/11/2024 - 14:31
          +1

          No YOUR understanding is wrong, why don't you hand in your resignation for when you plan on retiring?
          Just because it's convenient for you to finish up in 6 weeks, the company ONLY requires the minimum of 4 weeks.

          • AccuracyAdvocate on 26/11/2024 - 09:53

            @TightAl: I'll have to assume you are a troll. If you are not a troll feel free to o explain your position.

            • TightAl on 26/11/2024 - 10:04

              @AccuracyAdvocate: What's something someone from resigning two years from today?
              That's acceptable is it?

        • snirodha on 25/11/2024 - 16:14
          +1

          Here from workplace lawyers.

          What if an employee gives a longer than necessary notice period?
          Some employees may give a longer notice period than necessary. They may wish to finish working on a specific project or task, wish to handle the handover, or be aware that their role may be harder to fill than anticipated.

          If your employee gives a longer notice period, you do not have to accept this and may choose to only let the employee work the minimum notice period. In the alternative, you may wish to pay out the minimum notice period.

          • AccuracyAdvocate on 26/11/2024 - 09:51
            -1

            @snirodha: Provide the source for this as it contradicts fairwork, how do you explain the contradiction?

            • snirodha on 26/11/2024 - 15:38

              @AccuracyAdvocate: Hi Mate,
              There are 3 threads on the same topic here. Check the thread that was created on March 6th and go to the last comment. You will find the source.

              • AccuracyAdvocate on 26/11/2024 - 20:55

                @snirodha: Thank you, I will try to find it. Is the explanation for the contradiction with fairwork there as well? It clearly contradicts fairwork.

      • Parentheses on 25/11/2024 - 15:31

        Not guaranteed pay, because the company can legally terminate within the notice period for all of the normal termination reasons. It would just change from resignation to termination. If there was some reason for termination that came up with a 4 week notice period and the employee had given a 10 week notice, this can just happen inside the 10 weeks and the employee didn't actually resign, they got terminated. If you have a 2 week resignation notice and do something awful enough to trigger immediate termination, they can just terminate you and not pay the rest of the 2 weeks, there are no added protections.

        • snirodha on 25/11/2024 - 16:16

          What if an employee gives a longer than necessary notice period?
          Some employees may give a longer notice period than necessary. They may wish to finish working on a specific project or task, wish to handle the handover, or be aware that their role may be harder to fill than anticipated.

          If your employee gives a longer notice period, you do not have to accept this and may choose to only let the employee work the minimum notice period. In the alternative, you may wish to pay out the minimum notice period.

          • Parentheses on 25/11/2024 - 17:49

            @snirodha: Assuming we are talking about someone employed on a continuing basis (i.e. not casual, which has no notice period), then there are protections against being fired for no reason. You can be fired for negligence or some other cause, performance managed and fired for poor performance, or made redundant. Resigning is another way of leaving employment, but does not take effect until the EMPLOYEE decides it does.

            Just because I give notice that I will be resigning on the 30th of June, doesn't mean that I have given my boss the ability to fire me before that date, and the date of resignation can only be the date specified by the employee, because resigning is something the employee does. You are giving notice that you will be resigning, not resigning and then there's some leftover working time. You can be told to stay home whenever, but the employer must pay that out, even if it is longer than the required notice period. The employer DOES have to accept this longer notice period, even if it is 2 years out, to either let the employee keep working, or pay them. Because resignation is always 100% under the employee's control.

            The employer's only way to reduce that time is a termination, not a resignation. And that remains bound to all the same rules it did before the employee said they were resigning.

            • TightAl on 25/11/2024 - 18:41

              @Parentheses: Wrong lol

              • Parentheses on 25/11/2024 - 19:48

                @TightAl: Fantastic rebuttal, great points you made there.

                • TightAl on 25/11/2024 - 21:25
                  +1

                  @Parentheses: When something is so ridiculous, there's no rebuttal.
                  You made up literally all of that up.

                  "8. What If An Employee Provides More Notice than is Legally Required?

                  You are only required to accept the legally-imposed minimum notice period. If an employee provides a longer notice period than required, you can generally refuse to accept the longer period and instead ask them to finish up at the end of the legally-required minimum period instead."

                  Goodluck.

                  • Parentheses on 25/11/2024 - 23:30

                    @TightAl: Lol. Did you really just rely on an HR company blog post for your legal knowledge?

                    There was a reason you couldn't find a more reputable source. Take a read through this if you would like to learn the correct application of the law. It will benefit you as an employee by not getting screwed by an employer, or it will benefit you as an employer by not getting sued by an employee. https://library.fairwork.gov.au/viewer/?krn=K600628

                    Sometimes an employee may choose to give their employer more notice than the minimum notice period required by their industrial instrument or employment contract.

                    The last day of the employee’s employment is the last day of their notice period, unless this date is varied by mutual agreement between the employer and employee, or the employer terminates the employee’s employment during the notice period.

                    • snirodha on 26/11/2024 - 00:18
                      +1

                      @Parentheses: If you read bit further down in the same article.

                      Ending the employee’s employment
                      If an employee resigns and provides their employer with the required notice period (or more than the required notice period) and the employer doesn’t require the employee to work out the notice period, the employer can terminate the employee’s employment before the end of the notice period, and provide them with the full period of required notice or a ‘payment in lieu of notice’.

                      Good luck !

                      • Parentheses on 26/11/2024 - 00:21
                        -2

                        @snirodha: And if you read a little bit further down, you will see that the protections against unfair dismissal still apply. You can't arbitrarily terminate continuing employment in this country, and somebody telling you they will be resigning in the future doesn't count as a reason to terminate.

                        No need for luck when you can read.

                        • snirodha on 26/11/2024 - 01:06
                          +1

                          @Parentheses: No mate none applies to the scenario we are discussing. We had the exact scenario at our work and case went to the ombudsman and company won the case.

                          If you still dont believe contact FW tommorow for clarification. If you are working just don't resign tomorrow with advance notice:)

                          • Parentheses on 26/11/2024 - 02:24

                            @snirodha: Considering the ombudsman isn't where those cases go (the ombudsman doesn't hear cases of any kind), I feel pretty confident calling either that event or your knowledge of it at least complete bull.

                            This is not a grey area of workplace rights, it is very, very clear.

                            • snirodha on 26/11/2024 - 08:39

                              @Parentheses: Good luck ! You will need it. Whatever you do dont resign months ahead and come here to cry.

            • snirodha on 25/11/2024 - 21:29
              +1

              @Parentheses: First of all no one getting fired. Once u handover the resignation employer can do one of the below.

              1. Accept it as it is assuming employee given minimum required or more than required notice as per the contract.
              2. Ask the employee to leave work with immediate effect with required notice period (notice required by contract) pay.
              3. Ask the employee to leave on a certain date within the notice period and settle the pay based off required notice period.
              4. Come to an mutual agreement on the last day of work.

              Some workplaces carry sensitive work or do not require employee to hang around work if they intend to resign on a certain date. This is why point 2 and 3 is there. It is not firing someone. It is ending the contract as per agreed terms.

              Employee is a liability to the company regardless how good you are. Everyone is replaceable. Sorry if you think company or HR is on ur side. Those days are gone.

              • Parentheses on 25/11/2024 - 23:23
                -1

                @snirodha: How exactly do you think resignation works? You appear to be thinking it applies from the time an employee says "I am going to resign on day x". That's not how that works, legally. The resignation comes into effect on the date specified by the employee. That is why the templates you see read "effective as of". The opinion of the business on how much of a liability that makes the employee is utterly irrelevant, here in Australia we have labour laws to govern this relationship, because the company is on the company's side. Your ignorance of those laws is disappointing, people have literally died to provide them for you.

                If a non-casual employee says they will be resigning in 2 months, but their notice period is 1 month, you cannot as an employer decide that you will bring it up to just one month because that is the required notice period. An employee deciding they will be resigning at some point in the future does NOTHING to reduce the work rights that they would have had if they didn't say they were resigning. They have not resigned, until the date they said they would be resigning in their notice.

    • akashra on 24/11/2024 - 20:41

      The lack of understanding of how this works and how wrong some people have got it is frankly utterly wild.

  • serpserpserp on 24/11/2024 - 20:28
    +1

    I feel this is a repeat thread….

    How do people not know to take leave first, then resign.

    • iknowtj on 25/11/2024 - 10:59

      Legit copy and paste from last years.

  • TEER3X on 24/11/2024 - 21:02
    +1

    So start taking lots of sick days then

  • kaleidoscope on 24/11/2024 - 22:02

    Just a note on that (sorry if this has been discussed before). Can the employer avoid paying for the accrued annual leaves when you resign by under some conditions or is that a must pay (just the annual leaves accrued, not personal or sickies left)?

    Sorry OP, the HR is there to protect the company's interest, so there is typically no good faith of act etc.. Unions are there for employees' side of things :)

    • MrThing on 25/11/2024 - 08:27

      sick leave is paid out depending on your EBA / EA

      my anecdotal evidence from being staff my whole career……sickies or personal leave (fancy way to say sick leave) accrual is never paid out on resignation (retirement or forced redundancy is a different story) ymmv

    • JimmyF on 25/11/2024 - 10:07

      Can the employer avoid paying for the accrued annual leaves when you resign by under some conditions or is that a must pay

      Must pay all annual and long service leave owing.

      That said, they can deduct or short pay you if you have a negative balance for sick or annual leave to recover what is owing.

      • kaleidoscope on 25/11/2024 - 10:16

        Must pay all annual and long service leave owing

        That’s good to know.

  • TightAl on 24/11/2024 - 23:02

    Amateur, why wouldn't you wait?
    You make these mistakes only once in life.

    • JDearyMe on 25/11/2024 - 11:24

      Have answered that previously.

  • Alley Cat on 24/11/2024 - 23:23
    +2

    This reminded me one of the times I asked for a pay rise and gave my employer a range. They took the absolute minimum. A few months later, I decided to ask again, and this time I gave them a single number, which was the maximum. (I was successful both times.)

    In the grand scheme of things, good faith doesn't matter, and it can't matter. HR is spending someone else's money, you just need to help them tick the boxes so that they can report to someone as being fiduciarily responsible.

  • Paul2141 on 25/11/2024 - 13:50

    Forget the fact that you've given notice. Are they legally able to terminate you by 20/12? This really depends your employment contract - do they have grounds to terminate you out of convenience? Or are they just seeing what you'll go along with?

    • MrThing on 25/11/2024 - 14:31

      employers can forgo notice period and pay you out the notice period - that would mean you finish right then and there. basically get a paid holiday for whatever your notice period was

      • Paul2141 on 25/11/2024 - 16:41

        Yes, but I think OPs concern is whether he's getting paid after Dec 20.

        • MrThing on 25/11/2024 - 16:49

          if December 20th gives the 4 weeks notice required by his contract why not?

          His comment about being good to the company is BS anyway as is extensively criticised in the thread. He's on leave anyway, its Christmas and fuk all happens between Christmas eve and the first week of January and it wouldn't have changed anything either way he wanted the free public holiday leave days for no annual leave

          • Paul2141 on 25/11/2024 - 16:51

            @MrThing: Why not? Because why would the company want to pay him for public holidays if they can terminate him sooner?

  • Relapse on 25/11/2024 - 19:31

    This was very avoidable but my understanding is you are not completely exposed. Your resignation is not a justification for termination and if your employer moves the end date forward from your notice it's technically a termination. Notice period and minimum notice period are separate things. I would get the reason/justification for the change of date in writing, don't change your position on your end notice date and potentially consider engaging the FWC for unfair dismissal.

    https://library.fairwork.gov.au/viewer/?krn=K600628#:~:text=…

    • gromit on 26/11/2024 - 08:59

      Once the resignation has been handed in they can absolutely bring forward the end date to the end of their legal requirements as they no longer require him for work. This is not considered a termination and the excuse from them of "well business shuts down Dec 20 and he will be on leave anyway, there is no point and considerable financial liability for keeping him past that date" will be more than sufficient. Basically if you give more notice than required you are handing them the power over your end date as apart from being vindictive their are literally dozens of perfectly Valid legal excuses for saying "sorry, no your end date will be 4 weeks from now not 6 weeks". Hell they can even walk you out the door that moment and say "bye, here's your 4 weeks pay" which is literally what a LOT of companies do if the position has access to sensitive or competitive info (company I work for also walks you the day of notice).

      • Relapse on 26/11/2024 - 11:03

        If the OP has given his notice for the 3rd of Jan then that is the full notice period - just because there is a minimum notice period doesn't mean that is the solely what is applicable, it's just the minimum, minimum notice and notice period are not the same thing. The employer can take action to reduce it but it needs to be legally justified, resigning is not a reason. This is covered in the link in my original post

        Another reference

        https://yla.org.au/nsw/topics/employment/ending-employment/

        Your employer cannot terminate you on a date earlier than the end of the notice period. If your employer does this, it may be an unfair dismissal.

        If you provide notice, and your employer terminates your employment as soon as you provide notice, this may also be an unfair dismissal.

        • gromit on 26/11/2024 - 11:08

          The notice period they are referring to their appears to be the legal notice period. i.e. in the OP's case 4 weeks and yes they cannot payout or shorten less than 4 weeks. Fairwork is much clearer in their wording.

          "Ending the employee’s employment
          If an employee resigns and provides their employer with the required notice period (or more than the required notice period) and the employer doesn’t require the employee to work out the notice period, the employer can terminate the employee’s employment before the end of the notice period, and provide them with the full period of required notice or a ‘payment in lieu of notice’.

          Before ending an employee’s employment during their notice period, an employer should consider all of their obligations. An employer should also be aware that an employee may be able to dispute a decision to end their employment through claims such as:

          unfair dismissal
          breach of general protections
          unlawful termination
          breach of contract.
          For more information on ending employment, see Ending employment - Fair Work Ombudsman."

  • Dubsys on 26/11/2024 - 04:54

    Your workplace is your workplace, they don't care about you and you shouldn't care about them at the end of the day.

  • Bryden on 26/11/2024 - 11:52

    i just gave my notice last week, and i encountered this exact same conundrum

    technically they are within their right to convert all of your remaining annual leave into "final pay" and pay that on the last day (4 weeks after the end of your notice period)

    i considered giving my notice later so it would cover the public holidays, but technically theyre only obliged to pay those public holidays to current employees.

    Good luck and all the best mate

Login or Join to leave a comment
Login Join