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MarkSydney
05-07-2012, 11:56 AM
Hi All,

Need some help, I am expecting my second child soon and so have paternity leave for three weeks coming up sometime in the next month (when the child is born). This is unpaid leave but I will be paid annual leave during this period. Given that it is Paternity leave they do not have a choice but to allow me the time off for up to three weeks.

A couple of days ago I was offered a new job and have now handed in my resignation. Based on my contract I need to provide a months notice which I have done, however i was under the impression that my leave already approved would be included in that 1 month. I expect to be at work for the next couple of weeks then be on leave for three weeks which would effectively mean that the first day of leave is actually my final day at work.

HR have now told me that the 1 month is 1 month of actual working days, so if i only complete say 3 weeks worth then i have to work the remaining days after my leave but i am already expected at my new job by then.

My leave was approved months ago so its not like I am taking leave to get out of my notice period it just happen to fall that way? I just dont know where I stand on this situtation at the moment. I dont want to leave on bad terms but I feel that I was correct in my assumption based on what is written in my contract.

Any assistance would be greatly appreciated.

Moz
05-07-2012, 12:32 PM
My view is that you are correct - the leave period is part of your notice period. As far as I am aware, there is nothing in the law that says a notice period must be served actually working in the office, however there are other contributors to this forum who will be able to give you greater certainty on this.

It sounds like your HR dept are not going to accept an opinion expressed on HR Buzz, even if it is correct. So it might be worth calling the FWA so you can get more "official" advice and quote their response to your HR dept.

Neb-Maat-Re
05-07-2012, 02:10 PM
I'm curious - what would they do if you didn't go back for that extra week? Would they withhold entitlements?

HRbeat
06-07-2012, 09:53 AM
I agree with Moz. The leave period should be considered part of your notice period. Flipping the situation the other way around, some employers actually exercise the right to direct a resigned employee to take their paid leave during the notice period (gardening leave)

I would encourage you to work with your current Manager and HR towards a transition and handover plan achievable in the 3 weeks remaining that you will be actively at work. This reflects your intention to make a smooth transition and leave on good terms, doing the best you can given the situation with your approved leave.

Neb-Maat-Re
06-07-2012, 01:15 PM
take their paid leave during the notice period (gardening leave)



There is a distinct difference between "gardening leave" which is being paid to stay at home and being required to take your own accrued leave.

HRbeat
06-07-2012, 01:27 PM
Yes, I'm aware of that. I should have put e.g. gardening leave

Some employers do direct to take accrued leave during notice period subject to circumstances

Greg Schmidt
11-07-2012, 03:24 PM
Mark,

approved leave can form part of a notice period prior to resignation. But it's worth noting that Annual Leave and Parental Leave have very different approval requirements.

Parental Leave doesn't really require the employer's approval for the initial absence, provided that you can present relevant evidence and provide sufficient notice of the intended leave. My view is that if you can show that you meet the requirements for Parental Leave, then it has to happen at the appropriate time (ie. when your child is born) and your absence wouldn't extend the period of notice of your resignation. But it would probably be leave without pay.

Annual Leave is taken "for a period agreed between an employee and his or her employer". I know that your employer has already given approval for 3 weeks of Annual Leave, but that was in the context of the circumstances that everyone understood would apply. You, not your employer, have now changed those circumstances by announcing your departure (and please note that I'm not implying that you did anything for any negative reason).

Employees are usually required to give notice of resignation for a number of reasons, including the need to get projects finalised, conduct an orderly handover, etc. Issues which might be allowed to remain inactive during 3 weeks of leave might become critical if the responsible person is never going to come back. Your employer may therefore be justified in reviewing the prior approval for Annual Leave based on the new circumstances, or insisting that they get the benefit of the orderly handover and finalisation of projects that they are entitled to.

As HRbeat suggested, if you work with the company to ensure that their needs are met then it's entirely possible that you can achieve a mutually acceptable outcome. But if the company won't agree to a shorter notice period then I think they they could choose to revoke approval for your paid Annual Leave (but not your unpaid Parental Leave), or withhold pay (if your contract allows that), or both.

Greg

Tiger
12-07-2012, 12:32 PM
Part of this stream happens to go to one of my pet hates which is people who expect to take annual leave as part of their notice period. It is inconsiderate and unethical.
Notice periods are included in employment contracts for for a reason - essentially so that employers have time to find a replacement and, hopefully, have a handover from incumbent to new person.
Having an employee still on the books who has left and is not coming back, has potential implications around insurance.
Whilst the 'legislation' may not say this, any company worth its salt would include in their Annual Leave Policy the fact that annual leave may not be taken in lieu of notice.
So in this context, and there is a policy and it does that, your HR people are within their rights to expect you to work out your notice.
As offered by another, Parental Leave is different. Many women take annual and even long service leave at time of parental leave so they have some kind of income when on leave without pay.

What appears to have complicated things here is the rather foolish (in my opinion) offer to you of different job when you were about to embark on Parental Leave - why not wait until you have returned from P/L in a couple of months. You'd fulfilled your notification requirements to the company of your P/L, you'd applied for A/L and it had been approved. Pretty straight forward.

I also think the company is quite remiss in attempting to get you into a different role at the point you are about to go on P/L when the legislation actually provides women to ease off in the last six weeks (if required) of pregnancy. I can't help but wonder if they are thinking that by getting you to accept a different job now, that it will be easier for them when you return when they are expected to place you back on the "same or like" role you had before you went on P/L.

I probably would not have resigned but rather have told them I would consider an alternate job when I return in a few months that my priority now was the addition to my family.

Fact is that you have now resigned and as another contributor noted, what indeed are they going to do to you. They have to pay you your entitlements so I wouldn't worry. Just be mindful that it might not be a good idea to ask them for a reference!!

Cottoneyes
12-07-2012, 10:03 PM
Alternatively, having been denied leave during noticed periods (including half a day to attend the first scan with my wife for our first child) and been begged to extend my notice period in my last role, it amazes me how many employers do not have adequate processes in place to handle someone leaving.
If anyone could not be replaced or covered if they got hit by a bus and had to stay away from work, then sorry, but the business has not got back up / succession plans in place well enough. If the employee had to be summarily dismissed, then what would the business do? A good manager should ensure they have all processes in a manual, all project work documented and up to date on a regular basis, so if something happens they can at a minimum get a competent contractor in to pick things up and run with it for 6 months if required, regardless of the cause. Better practice is to have a back up as well.

I've found it rarely is the employee wanting to leave for the money or any other positive reason, but moreso reacting to the way they have been treated by the employer in the 6 months prior to them leaving that determines the way in which they leave, and the way they use / give notice. Not saying it is the case for the original poster.

And for the record, I attended the scan with my wife after taking sick leave (with certificate), so the employer lost out on having to pay me the half day of annual leave they denied me. It's not hard for employees to get sick certificates which then leaves the employer having to pay out sick leave, as well as the annual leave, without getting any of the notice period. I've seen a few cases of 'stress' leave coming out of the notice period when the employer wants to dig their heels in.

Neb-Maat-Re
13-07-2012, 07:50 AM
What appears to have complicated things here is the rather foolish (in my opinion) offer to you of different job when you were about to embark on Parental Leave ...

I also think the company is quite remiss in attempting to get you into a different role at the point you are about to go on P/L

I think the OP means an offer from a different employer.