Resignation Acceptance & Exit Pack | s.90 & s.117 FWA

Strictly speaking, Australian law gives an employer nothing to accept. A resignation is a unilateral act, and once clearly communicated it ends the contract when the notice expires, whether or not the business agrees. The Fair Work Ombudsman confirms an employer cannot accept or reject a resignation. What the employer should do is acknowledge it in writing, lock in the effective date and settle the terms of departure while both sides are still cooperative. The word acceptance survives in HR practice because it signals receipt and action, not because it has legal force.

The pack differs from a termination letter in one fundamental way. A termination letter records the employer's decision and triggers the notice obligations in s.117 of the Fair Work Act, along with unfair dismissal exposure. A resignation acknowledgement records the employee's decision. The line blurs quickly, because a pressured resignation, or one where the employer cuts the notice short without agreement, can be recharacterised as a termination at the employer's initiative. If you are the one ending the relationship, the termination letter pack drafted to the s.117 notice scale is the correct instrument.

The NES do not impose a general notice obligation on employees who resign. Employee notice comes from the modern award, the enterprise agreement or the employment contract, and a contract cannot require less than the applicable instrument. Casual employees generally give no notice at all. Most awards contain a model term allowing the employer to withhold up to one week of award wages from final pay when the required notice is not given, but that deduction disappears once the employer asks the employee not to work the notice or agrees to a shorter period.

Section 117 becomes relevant the moment the employer decides it does not want the notice worked. Unless the parties agree a new end date, bringing the date forward is a termination by the employer, requiring NES notice under s.117(3) or payment in lieu under s.117(2)(b). Payment in lieu must be made at or before the time of termination, not in the next pay run. The Full Bench in Bupa Aged Care Mona Vale v Tavassoli [2017] FWCFB 3200 also confirmed that a resignation procured by employer pressure may be a dismissal under s.386(1).

Final pay is governed by the instrument and the Act together. Section 90(2) requires untaken annual leave to be paid out, most awards require final pay within seven days of the last day, and the Fair Work Ombudsman guidance on final pay and termination entitlements explains when the NES timing overrides a slower award rule. Deductions must satisfy s.324, pay slips must issue within one working day under s.536, and records are kept for seven years under s.535. Intentional underpayment is a criminal offence under s.327A, and superannuation on qualifying earnings must reach the fund within seven business days of payday under the Treasury Laws Amendment (Payday Superannuation) Act 2025.

The obvious trigger is a permanent employee who resigns with the notice their award requires. A written acknowledgement within a day or two stops the most common dispute: disagreement about the actual last day, which drives leave accrual, the final pay figure and, in long tenures, the long service leave threshold. The second situation is the employee who gives more notice than required. Employers often want to trim six weeks down to the award minimum, and the letter must record whether that change was agreed or imposed, since an imposed change pulls s.117 into play.

Resignations mid-dispute are the third case. If you had issued an employee warning letter and performance improvement plan, the acknowledgement should neutrally record that the resignation was voluntary and that the process closes with the employment. Departures to a competitor come next, and there the property checklist and confidentiality reminder become your first evidence if client data walks out the door.

One edge case trips up payroll. No deduction from the final pay of an employee under 18 is valid under s.326(4) without a parent or guardian's written agreement, whatever the contract says.

• The acknowledgement of resignation records the date notice was received, the method used and the resulting last day. It avoids wording that implies approval.
• The notice period clause states the minimum notice under the applicable instrument, then records the outcome: notice worked in full, a shorter period agreed in writing, or payment in lieu with a payment date on or before termination.
• The final pay schedule itemises wages to the last day, untaken annual leave with leave loading where the award requires it, time off in lieu, pro rata long service leave under the state Act and any contractual bonus. It notes that personal leave is not paid out and that paid out leave and payment in lieu are generally not ordinary time earnings for superannuation.
• The company property checklist covers laptops, phones, keys, access cards, vehicles and files, with a return date and sign-off. It also deals with deleting business data from personal devices, consistent with a privacy policy aligned with the Australian Privacy Principles.
• The continuing obligations reminder restates confidentiality, intellectual property and restraint terms. Under s.35(6) of the Copyright Act 1968 (Cth), work created in the course of employment already belongs to the employer.
• The reference position statement records whether the business gives a written reference, a verbal reference or a factual statement of service only, and who may give it.

New South Wales applies the Long Service Leave Act 1955 (NSW), with two months of leave after ten years. The pro rata rule on resignation is narrow and often misapplied. An employee with five to ten years of service receives a pro rata payment only if they resign because of illness, incapacity, or domestic or other pressing necessity. A plain resignation at year eight to take a better offer attracts nothing. Because the reason drives the entitlement, the template records any reason the employee has given in writing.

Victoria is far more generous. The Long Service Leave Act 2018 (Vic) grants a pro rata payment on termination for any reason, resignation included, after seven years of continuous employment. For national system employers, the federal offence in s.327A now covers the ground previously occupied by the Wage Theft Act 2020 (Vic), so criminal exposure for deliberately short-changing final pay is Commonwealth rather than state.

Queensland places long service leave in the Industrial Relations Act 2016 (Qld), with 8.6667 weeks after ten years. Between seven and ten years, pro rata payment arises only on specified grounds such as illness, incapacity, pressing necessity or dismissal for a reason other than conduct, capacity or performance. An employee who resigns at year nine without one of those grounds leaves with no long service payment, and the schedule reflects that instead of defaulting to a Victorian calculation.

Western Australia needs separate handling. Sole traders, partnerships and some trusts are not national system employers and fall under the Industrial Relations Act 1979 (WA) and the Minimum Conditions of Employment Act 1993 (WA). Separately, s.8(3) of the Long Service Leave Act 1958 (WA) pays pro rata leave after seven years on termination in any circumstances other than dismissal for serious misconduct, which captures an ordinary resignation.

You start by selecting the state or territory where the employee works and confirming whether the business is a national system employer. That choice sets the long service leave rules and, in Western Australia, switches the framework for unincorporated businesses. Next you enter the award or enterprise agreement, or confirm the employee is award free, and the form pulls in the matching notice language. Keep the signed employment contract template with notice and set-off clauses at hand, since contractual notice may exceed the award minimum.

The form then asks for the date the resignation arrived and the notice offered. If you want an earlier finish, you choose between a mutually agreed end date and payment in lieu, and the wording and payment date adjust. You complete the final pay schedule from payroll balances, tick the property items and pick a reference position. The wider range of Australian employment document templates covers the rest of the employee lifecycle.

In practice, the most expensive error is telling a resigning employee to leave today without agreeing that in writing or paying out the notice. That one conversation can turn a resignation into a dismissal, reopen unfair dismissal rights and expose the business to a s.117 claim. The second mistake is withholding final pay until a laptop comes back. A deduction for unreturned property is lawful only with a written authorisation that complies with s.324, and an old handbook clause rarely qualifies. Holding back wages as leverage is an underpayment, and intentional underpayment carries criminal liability.

Businesses also forget leave loading on paid out annual leave where the award requires it, apply the wrong state's long service threshold, or calculate superannuation on payment in lieu of notice. References cause the rest. A glowing reference for someone who left under a cloud risks a negligent misstatement claim from the next employer, while a careless negative one risks defamation, so a factual statement of service is often the safer default.