Frequently Asked Questions

Q: Can a conditional notice of termination of a contract of employment be considered valid?

A conditional notice of termination may be valid provided that the fulfilment of the condition is operational. In Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64, White J said (at [92]):

“Nothing in Fryar v Systems Services Pty Ltd supports the proposition that a notice of termination of a contract of employment is invalid if it is conditional. In the passage quoted by O’Connor J recognised that “’certainty’ of the employment situation” would not exist until after it was known whether the condition was satisfied or not. A conditional notice of termination operates only from the fulfilment of the condition. It does not follow that a conditional notice is merely invalid because it is conditional. Of course it may be invalid for other reasons. The notice period might be too short...No doubt a conditional notice of termination of the contract of employment must be certain. The party receiving the notice must be in a position to know whether the condition has been satisfied or not. But provided the notice, including its specification of the condition on which it is to be operative, is certain, I see no reason why it should be ineffective merely because it is conditional.”



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