What, if any, is the minimum notice period to terminate employment?
Employment & Labour Law (3rd edition)
Employers have an obligation to give prior notice of termination to employees who are dismissed without just cause, in accordance with the following guidelines:
- employees undergoing probation are entitled to 15 days’ advance notice of the termination of their contract,
- employees whose seniority ranges from three months to five years must receive the termination notice one month in advance of their dismissal, and
- employees whose seniority exceeds five years must receive the termination notice two months in advance of their dismissal.
The employee can unilaterally terminate the employment contract by written notice to the employer 30 days in advance, or by written notice 3 days in advance if submitted during the probation period.
In relation to an employer terminating the employment contract, notice 30 days in advance or one month’s salary in lieu of notice must be given in the case of legal termination without cause (see question 1); while a notice 30 days in advance to the trade union or all employees is required in cases of mass redundancy (see question 2). Except for the period above, the employer is entitled to immediately terminate without any advance notice when the employee is at fault (see question 1).
There is no minimum notice period for the employer to terminate an employment relationship. Therefore, the termination of the employment relationship by the unilateral will of the employer does not require and previous notice. It only requires the corresponding legal indemnifications payments.
In Ecuador, as a rule every working relationship has indefinite duration. Before this reality, we had fixed period labor agreements that required a 30-day prior notice, but now these agreements are no longer valid.
Notice periods are determined by the applicable branch collective bargaining agreement (CBA) depending on the employee’s categories and length of service. The notice period would typically amount to one or two months for blue-collar and administrative employees, and three months for employees of managerial status (“cadres”). Some CBA’s provide for shorter or longer notice periods.
Concerning the trial period, the notice depends upon the length of service and amounts to a maximum of one month.
Finally, in certain circumstances, no notice period applies, especially in case of dismissal for gross misconduct, or for physical unfitness not caused by an accident at work or an occupational disease.
The basic statutory notice period is four weeks to the 15th or the end of a month. This notice period increases depending on the seniority of the employee up to a maximum of seven months to the end of calendar month (after 20 years of service). If the parties agree to a probationary period of no longer than six months, the dismissal notice period can be shortened to two weeks.
Collective bargaining agreements sometimes provide for shorter or longer notice periods.
Labour law only requires a minimum notice period of 30 days in case of termination due the grounds of business needs and termination at will. This notice period may be waived according to answer number 5 below.
The Labour Law only sets out the notice period for a termination of employment due to resignation, which is a minimum of 30 days. As unilateral termination of employment is restricted in Indonesia, an employer cannot simply terminate an employee by serving a notice period for termination of employment.
Employees are entitled to the notice period in any of the following circumstances:
- dismissal notified within a collective dismissal procedure;
- dismissal for justified grounds, either subjective or objective ("giustificato motivo soggettivo o oggettivo");
- dismissal notified since the relevant employee’s absences from work due to illness or accident exceed the relevant maximum threshold set forth by the applicable national collective bargaining agreement;
- dismissal notified due to the employee’s supervening professional unsuitability.
The actual term of the notice period is set out by the applicable national collective bargaining agreement and depends on the qualification (executive “dirigente”, middle-manager (“quadro”), white-collar or blue-collar) assigned to the relevant employee and his/her company seniority. Generally speaking, its term is in the range between 1 and 6 months.
Section 12 of the Employment Act 1955 (“EA”) sets out the minimum period of notice of termination which is applicable to EA employees.
The notice period for non-EA employees would be as set out in their employment contracts. In the absence of such a clause, reasonable notice shall be given taking into account the seniority of the position, nature of the job and/or the industry practice of the said business. The provisions in the EA may also be used as guidance.
Notwithstanding the above, Section 20(1) of the Industrial Relations Act 1967 states that the termination of employment may only be for just cause and excuse. Therefore, employers are required to justify the reasons for their decision to terminate employment and cannot rely solely on a notice of termination clause.
The minimum length of notice for both the employer and employee is one month. For employees employed for a trial period, the minimum notice period is 14 days.
The minimum notice period is further specified in the WEA:
- Employees employed for at least five consecutive years – at least two months’ notice.
- Employees employed for at least 10 consecutive years – at least three months’ notice.
- Employees who have been employed for at least 10 consecutive years and are over 50 years of age – at least four months’ notice,
- Employees who have been employed for at least 10 consecutive years and are over 55 years of age – at least five months’ notice, and
- Employees who have been employed for at least 10 consecutive years and are over 60 years of age – at least six months’ notice.
For termination based on just causes, it is required that the employee be served with two written notices.
The first written notice (i.e. notice to explain) must contain:
- the specific causes or grounds for termination under the Labor Code and/or company policies;
- detailed narration of facts and circumstances that serve as basis for the charge;
- statement on the imposable sanctions in case the violation is proven; and
- a directive that the employee is given opportunity to submit a written explanation within a reasonable period (i.e., at least five (5) calendar days from receipt of the notice).
The second written notice (i.e. notice of decision) is served after the employee has been given ample opportunity to be heard and to defend himself with the assistance of his counsel/representative, if he so desires. The notice should indicate:
- all circumstances involving the charge against the employee have been considered;
- the grounds have been established to justify the severance of the employment; and
- the effective date of termination, if applicable.
The second written notice must be served on the employee or the employee’s last known address.
For termination based on authorized causes, written notice must be simultaneously served upon the employee and the appropriate Regional Office of the Department of Labor and Employment (DOLE) at least 30 days prior to the effectivity of the termination, specifying the grounds for termination.
Due to the at-will nature of most employment relationships, either the employer or the employee may terminate the employment relationship at any time, for any reason or no reason at all, without providing notice, unless otherwise agreed. There are however limited circumstances, which trigger requirements, under the federal WARN Act, previously discussed in response to Question 2, and similar state law measures.
Another federal statute, the Older Workers Benefit Protection Act (OWBPA) does not require pre-termination notice but imposes notice requirements in obtaining releases and waiver of age discrimination claims. Under the OWBPA,(which amended the Age Discrimination in Employment Act (ADEA)) prohibiting employment discrimination and retaliation against employees and applicants age 40 or older, an employee separation agreement that includes the release of an age claim will not be considered knowing and voluntary unless, it (among other things) provides the employee at least 21 days to consider the agreement before signing and an additional 7 days to revoke the agreement.
If the termination is part of an exit incentive or other employment termination program including two or more employees, the employees must be given at least 45 days to consider the agreement before signing and an additional 7 days to revoke the agreement. In either case, the agreement is not effective or enforceable until after the expiration of the revocation period.
The minimum notice periods regulated under TLC are,
- 2 weeks, if length of service is less than 6 months;
- 4 weeks, if length of service is between 6 months and 1.5 year;
- 6 weeks, if length of service is between 1.5 year and 3 years;
- 8 weeks, if length of service is more than 3 years.
During the trial period (i.e. one month by law, extendable to a maximum of three months) the statutory minimum notice period is seven days (Article 335b CO). After the trial period, the statutory minimum notice periods are one month during the first year of service, two months from the second to the ninth year of service (included), and three months thereafter (Article 335c CO).
Longer or shorter notice periods can also be agreed upon by the parties in writing, in a collective labour agreement or in a standard employment agreement. However, after the trial period, the notice period cannot be shorter than one month, unless otherwise provided in a collective labour agreement and in any case limited to the first year of service.
The employment agreement ends at the end of a month, unless otherwise agreed. It is mandatory that notice periods be of the same length for both employer and employee. Should the employment agreement state otherwise, the longest notice period is applicable to both parties.
It is also possible to terminate the employment relationship with immediate effect (i.e. without notice), provided that there is a 'just cause' (see question 5).
There is no statutory minimum.
Most employment agreements contain a notice provision. Notice for waged staff is typically one to two weeks. Salaried staff in supervising and management positions often have notice of four weeks or one calendar month. Senior, management and executive staff can expect notice anywhere from three to 12 months (or longer). Most employment agreements also require notice to be given in writing to avoid any doubt as to an employer’s or an employee’s intention
If an employment agreement does not specify a notice period, then reasonable notice must be provided having regard to seniority/salary level, the nature of the role, length of service, company or industry practice and personal factors such as age, qualifications, and job mobility. A common misconception is that the notice period is equal to the duration of the pay period, but this is not, of itself, determinative. The reasonableness of the notice period is determined at the time that notice is given, not at the time the employment agreement was entered into.
The minimum notice period for an employee is one month. The minimum notice period for the employer is also one month, but varies depending on the length of service. The minimum notice periods required by law (for employments entered into after year 1997) are as follows:
- 0-2 years of service one months’ notice
- 2-4 years of service two months’ notice
- 4-6 years of service three months’ notice
- 6-8 years of service four months’ notice
- 8-10 years of service five months’ notice
- 10 years of service or more six months’ notice
Please note that an applicable collective bargaining agreement may set forth longer notice periods.
It depends again on the type of termination: a termination during the probationary period is of minimum fifteen days and of maximum one month whereas a termination without notice takes effect on the day it is validly notified to the employee.
More generally, where the employment contract is terminated with notice, a legal notice of two months, four months or six months must be served by the employer unless a longer notice period is agreed to in the employment contract or the collective bargaining agreement applicable, if any. Collective bargaining agreements applicable in the banking or insurance sectors provide for longer notice periods in the case of redundancies.
Beware that a legal severance pay also applies to employees with a minimum of five years’ length of continuous service.
The statutory minimum notice period in case of dismissal is 20 working days - applicable in case of both management position and non-management position employees. Longer notice periods may be agreed and set out, usually, in the employment contracts or collective agreements.
By law, notice is not required for disciplinary terminations, nor in case of termination due to the employee being under arrest for a period exceeding 30 days. Equally, as anticipated, no notice applies if employment is terminated during or at the end of the probationary period.
In the case of a dismissal procedure based on the commission of a serious or severe misconduct, employers are obliged to grant the worker a minimum of six (6) calendar days in order to let him or her advocate their selves -by written statement- from the accusation. Once expired, the employer may decide to dismiss the worker or to maintain the employment relationship with him or her.
However, the aforementioned term does not apply in the cases where the misconduct is flagrant or in a withdrawal of trust scenario, as described in Question N° 1.
On the other hand, in the event the worker aimed to quit his or her job, our legislation states a prior notice period of thirty (30) days in order to inform the employer such decision. The employer can exonerate the worker from said term by own initiative or at the worker’s request. In the latter case, the request will be deemed approved if it is not rejected by the employer within the third (3) day in which it was issued.
Furthermore, there is no legal notice period foreseen for the cases of voluntary disengagement with economic incentives plans and dismissals during trial period.
The minimum notice period for dismissal is 30 days (Article 20, paragraph 1 of the Labour Standards Act).
In case of an open-ended contract the minimum statutory notice period to be observed by
the employer is at least one month, or longer if the duration of the contract is more than five
years, with a maximum of four months. The notice period for termination of employment by
the employee is also one month.
Parties can agree on a deviating notice period in the employment contract. In that case the
notice period to be observed by the employer must be double the notice period for the
employee. Employer has to observe, if present, notice periods determined by the applicable
collective bargaining agreement (CBA).
With respect to the notice period, Sec 20 of the Salaried Employees Act states that employers must provide at least a six-week notice period before they terminate an employee’s contract. This notice period increases with seniority, such as:
- Two months after the employee’s second year of employment
- Three months after the fifth year
- Four months after the fifteenth year, and
- Five months after the twenty-fifth year of service.
Austrian law also distinguishes between white-collar and blue-collar employees. Regardless of their length of service and in absence of any other agreement, all white-collar employees must give one months’ notice by the end of the month, whereas blue-collar employees and their employers must give 14 days’ notice. If no agreement has been made stating otherwise, then the Salaried Employees Act dictates that the only permissible termination dates must fall on the last day of a calendar quarter, but also allows CBA to modify this requirement to allow termination dates to fall on the fifteenth or the last day of each month.
Under Mexican legislation there is no minimum notice period to terminate an employment relationship. That is, when the employer dismisses the employee the employment termination will be effective immediately. When an employer terminates an employee under the justified causes established in article 47 of the FLL, the employer must notify the employee within 30 days of the cause or causes of the termination, or notify the Labour Board, within five days following the termination.
Employees who have been continuously employed for one month or more are entitled to a prescribed minimum period of notice from their employer. This is one weeks’ notice if the employment is for less than two years. For two years’ employment it is two weeks’ notice, rising by one week for each additional year of employment, up to a maximum of twelve weeks’ notice. Employees are required to give a minimum of one week’s notice to their employer, or such additional notice as may be prescribed in the contract of employment.
Contractual notice periods are often longer, commonly one month for junior employees, rising to six months for senior managers and directors. The contractual notice period required from the employee is often, but need not be, the same as from the employer.
Where the reason for termination of employment is the employee’s gross misconduct, the employer is entitled to terminate the employment immediately without notice on the grounds that the employee has repudiated the contract. If an employer fundamentally breaches the contract of employment, the employee is entitled to terminate the employment without giving notice and to claim that he has effectively been dismissed by the employer, known as constructive dismissal. A fundamental breach of the contractual obligation to maintain the relationship of trust and confidence between employer and employee which is implied into every contract of employment is often cited as the relevant breach.
The minimum statutory notice period is one actual prospective pay period for the employee concerned, but no more than 3 months’ notice needs to be given (if the actual pay period is more than 3 months). If the employment contract provides for a longer notice period, the employer would be required to comply with such notice period.
Under the LPA, advance notice of termination is not required if the employment is being terminated under any of the grounds in Section 119 of the LPA.
In the case of dissolution of the labour contracts initiated by the employer, with exception for cases of dissolution of the contract for any breach of labour discipline, the employer should give notice of termination of employment within the defined term. In case of dissolution of the contract for the reason of reduction of staff, the employee shall be given two months’ notice. In other cases, the term of the notice depends on the employee’s length of service, and constitutes 14–60 days.
Under the LSA, an employer must provide at least thirty (30) days’ written notice of termination to the employee. Alternatively, an employer may provide thirty (30) days’ compensation instead of the advance notice. Please note that the latter will merely permit the employee to terminate an employee without the notice period. An employer must provide a written termination notice – indicating the effective termination date, and the grounds for termination – irrespective of whether advance notice is provided or compensation is made instead of the advance notice.
Under limited circumstances, employers may be exempt from the written termination notice requirement. Due to the recent legislative amendment going into effect on January 15, 2019, the scope of the statutory exemption varies as follows:
For employment contract entered into after January 15, 2019, advance notice of termination is not required for any employee who has been employed for less than three (3) consecutive months.
For employment contract entered into before January 15, 2019, advance notice of termination is not required for:
- A daily employed employee who has been employed for less than three (3) consecutive months;
- An employee who has been employed for a fixed period of not exceeding two (2) months;
- An employee who has been employed for any seasonal work for a fixed period of not exceeding six (6) months; and
- An employee on a probationary period (3 months or shorter).
The minimum notice period is strictly prescribed by the LLA and depends on the duration of the employment relationship with the same employer as follows:
1) two weeks, for less than one year of employment
2) one month, for one year of employment
3) one month and two weeks, for two years of employment
4) two months, for five years of employment
5) two months and two weeks, for ten years of employment
6) three months, for twenty years of employment.
For a worker with twenty years of employment with the same employer, the aforementioned period of notice is increased by two weeks if the worker has reached the age of 50 or by one month if the worker has reached the age of 55.
If the employment contract is terminated for breach of obligations arising from the employment relationship (termination due to worker's misconduct) the respective notice period is two times shorter.