An employee was entitled to two months’ notice under the employment contract, having only received one week’s notice, and the equivalent monetary value of seven weeks’ notice was awarded.

The Commission ordered an employer to pay $22,884.62 to a former employee, after finding that the employee was entitled to seven weeks’ notice under their employment contract because the termination provision did not distinguish between a trial or probation period and ongoing employment and there was no ambiguity in the contract.

Background

The applicant commenced work with the respondent on 1 November 2021 as the General Manager. On 27 October 2021, the respondent sent the applicant a letter titled ‘Contract of Employment’, by which the respondent offered the applicant employment and set out the terms of the employment contract. Relevantly, the contract stated that the employment may be terminated by the applicant or the respondent by “providing a minimum of 2 months [sic] notice”. In a different part of the letter, it also stated that the applicant’s employment contract was “subject to a trial period of 6 months”. The respondent terminated the employment contract on 8 April 2022, providing the applicant with the equivalent of one week’s notice.

Contentions

The applicant sought an order for the respondent to pay him the equivalent of a two months’ notice period, less the one week’s notice he received, being $22,884.62. The applicant contended he was entitled to such amount under the employment contract.

The respondent opposed the application, stating that the applicant was only entitled to one week’s notice, in accordance with the Fair Work Act 2009 (Cth), because the applicant’s employment was terminated during the probation period and he was on a probationary agreement.

Findings

The Commission found that the term of the employment contract concerning notice of termination provided for a minimum notice period of two months and did not distinguish between the trial or probation period and ongoing employment. There was no ambiguity surrounding the notice of termination term and therefore, the provisions of the FW Act concerning minimum notice periods were not implied into the employment contract.

As such, the applicant was entitled to the benefit of the contractual term requiring two months’ notice of termination of his employment contract.  Having already received the equivalent of one week’s pay at the time of termination, the Commission awarded the applicant the equivalent of seven weeks’ notice, being $22,884.62.

The decision can be read here.