Taking leave during a period of notice
A question that often arises when an employee resigns is whether the employer can demand that the employee take annual leave during the period when notice of termination is operative.
In other words, can the employer insist that annual leave be taken after the employee gives notice and, if so, will the employee still have "worked" the appropriate period of notice when absent from the workplace on leave, for part of or all of the notice period.
Section 25 of the Minimum Conditions of Employment Act stipulates when leave can be taken in Western Australia.
It states that where an employer and an employee have not agreed when the employee is to take annual leave, the employee is to give the employer at least two weeks’ notice of the period during which he or she intends to take leave and the employer is not to refuse the employee taking this leave (so long as the leave was accrued more than 12 months before that time).
While this provision gives various rights to the employee in this respect, it is silent on the employer’s position.
The act, however, implies that the parties can mutually agree to the taking of annual leave during a period of notice.
While many employers would probably prefer their employees to take annual leave during the notice period, this cannot be achieved, however, without mutual agreement.
If an employer were to impose the taking of annual leave during a period of notice on an employee (particularly to avoid the payment of wages in the notice period) this would be construed as being unfair.
If an employer wants the employee to take leave during the employee’s notice period, it should do so after obtaining the employee’s consent.
Carla Paratore, solicitor - 9288 6940
Ian Curlewis, partner - 9288 6756
