Leave During Notice Period

[Moz]

I became involved in a discussion recently about a young guy who had given notice to his employer that he was leaving, but was told by his employer to take his accrued annual leave during his notice period. The idea being that they then didn't have to pay out his untaken annual leave. However, the employee did not want to do this, he wanted to work out his notice period and be paid out for his accrued leave.

I had made an assumption that it was illegal to force someone to do this, but does anyone know for sure what the legal situation is regarding this under the FWA?

[belinda]

Moz

Sounds likes the employer did not want this person working out their notice period and instead of paying them lieu in notice, is making them take annual leave. Sounds a bit shifty.

How did you go finding out about the legal situation here?
Belinda

[Moz]

How did you go finding out about the legal situation here?
Belinda

Hi Belinda,

I didn't - I was hoping that someone would already know and save me wading through the FWA, although the issue has nothing to do with me so there's no urgency.

My gut feel is that it must be illegal. Being a bit of a cynic I would think a lot of employers would use this to reduce costs if only they could

Moz

[SuzanneC]

the employee may have had in excess of 40 accrued holiday leave, whereby the employer can instruct the employee to take upto two weeks leave to reduce the leave entitlement to be paid out. This could be the case with this resignation?

[Moz]

the employee may have had in excess of 40 accrued holiday leave, whereby the employer can instruct the employee to take upto two weeks leave to reduce the leave entitlement to be paid out. This could be the case with this resignation?

I found out since my initial post that he had 5 days leave accrued. When he gave 4 weeks notice the employer instructed him to "immediately" fill in a leave application form for the 5 days accrued leave.

From what I can see the FWA is not very prescriptive about this directing an employee to take annual leave (link to FWA relevant part)

So unless it is dealt with specifically somewhere else it may need a court to determine whether the "timing of the direction or requirement to take leave" is reasonable.

[HRIMHO]

While a FWA case may have to figure it out, I'd tend to agree with the other sentiments here - that it'd be illegal to do so.

The resignation is actually irrelevant in this situation in my opinion, it's a case of "can you force someone to take leave". Might boil down to the enterprise agreement or award specifically but I doubt they're allowed to.