Section 34 of the Employment Act (Chapter 373) sets the notice required to end a contract of service. It is short, and every subsection has practical consequences.
Section 34(4) — the default periods
| Length of employment | Minimum notice |
|---|---|
| Less than four weeks | One day |
| Four weeks or more, less than one year | One week |
| One year or more, less than five years | Two weeks |
| Five years or more | Four weeks |
These apply where there is no provision in the contract for notice. Where the contract does provide for notice, section 34(3) requires it to be as specified in the contract — or not less than the section 34(4) periods.
A contractual notice period shorter than the statutory minimum is a term less favourable to the employee than the Act, and is void to that extent. A longer period is permissible — the Act sets a floor.
Section 34(3) — the same for both parties
This is easy to overlook and frequently breached. A contract requiring an employee to give three months’ notice while the employer gives two weeks does not comply with section 34(3).
The asymmetry usually favours the employer, which makes the shorter side the one that is less favourable to the employee — and therefore the one exposed under the rule against contracting out.
Section 34(1) — written contracts in the first two years
This section does not apply to a written contract of service for the first two years of operation of the contract — unless the parties agree otherwise.
So for a written contract in its first two years, the section 34 notice regime is switched off unless the parties opt in. The position is then governed by the contract itself and by the other provisions of Division 6 — in particular section 36, which allows termination without notice on specified grounds.
Anyone negotiating a written contract should therefore deal with notice expressly, because the statutory default may not fill the gap.
Section 34(5) — the form of notice
- For a contract of service referred to in section 19(a) — notice must be in writing.
- For any other contract of service — notice may be given orally or in writing.
The day on which the notice is given shall be included in the period of notice. A one-week notice given on Monday expires at the end of the following Sunday, not the following Monday.
Even where oral notice is permitted, put it in writing and keep a copy. Disputes about employment almost always turn on what was said and when, and an oral notice is very hard to prove afterwards.
Section 35(2) — payment instead of notice
Where a party has given notice under section 34, either party may, without waiting for the expiry of that notice, terminate the contract by paying the other a sum equal to the amount of salary that would have accrued to the employee during the period of the notice.
Two features worth noting. The right belongs to either party, not only the employer. And it operates after notice has been given — it shortens a notice period already running.
Section 35(1) separately allows an employer and employee to mutually agree to terminate with or without notice.
Where notice is not required at all
- Mutual agreement — section 35(1).
- Piece-rate contracts under Division 5 — terminable by either party without notice (s 35(3)).
- Casual employees — terminable by either party without notice, but with a protection: if the employer terminates for any reason other than a section 36(1) ground, the casual employee shall be paid for a full day’s work on the day of termination, even if fewer than eight hours were worked (s 35(4)).
- Section 36 grounds — summary dismissal for misconduct and the other specified grounds.
Section 33 — contracts that end without notice being needed
- A contract for a specified time or for specified work terminates when the period expires or the specified work is completed — unless terminated earlier under Division 6.
- A contract for an unspecified period is deemed to continue until terminated by either party under the Division.
Checklist on termination
- Identify the contract type — written, oral, casual, piece-rate, fixed term or unspecified.
- Check whether it is a written contract in its first two years — section 34 may not apply.
- Find the contractual notice period, and compare it with the section 34(4) minimum.
- Check both sides are equal — section 34(3).
- Give notice in writing, and remember the day of giving counts.
- Consider payment in lieu under section 35(2) if the notice period is to be shortened.
- Check your final pay — wages to the last day, accrued leave, and any deferred wages.
- Check whether repatriation is owed.
Sources
Before relying on anything here, read the current text of the Employment Act (Chapter 373) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.