Approved Annual Leave and Absence During Notice Periods

Notice periods continue to raise many questions as to how employers may treat the absences of their employees.

Can an employer cancel an employee’s approved leave, either the entire period or what remains, when the employee has provided notice?

The answer is No.  An employer cannot unilaterally withdraw approval for leave that has already been approved. 
The only way leave can cease and the employee return to the workplace would be via agreement between the employer in the employee.  Generally, the question commonly arises due to the operational need for a handover to be completed by the exiting employee.  Whilst you can request that they consider cancelling their leave or returning early to assist with this handover, you cannot force it to occur.

It is also important to note that the approved leave will not extend the notice period provided by the employee.

Another common question is if an employer can refuse a request for personal leave by an employee during their notice period.

Again, the answer is no.  An employee working their notice period is still legally employed by you up to and including their last day of notice.  As such, the National Employment Standards and Fair Work Act continue to apply to the employee and they have a right to take personal leave if they:

·       Are ill or injured

·       Have an immediate family member or member of their household that is ill or injured and requires the employee to care for them

As with all applications for this type of leave, the employer has the right to request the relevant documented evidence.

A third common question is if an employer can refuse a request for annual or long service leave during a notice period.

The answer to this, is Yes.  Whilst the Fair Work Act provides that an employer can only refuse a request of leave on reasonable operational grounds, the requirement for an employee to provide a handover during a notice period would be considered reasonable and therefore a refusal would be reasonable.  Note: consideration must be given to the need for handover and how long a handover would reasonably take to occur.  For example, if an employee has provided 4 weeks’ notice and they could reasonably complete a handover in a two-week period, it would not be reasonable to refuse their request for the 2 weeks where handover would not be required.

For assistance with your employee’s notice obligations, please contact us at [email protected] or 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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