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Can you sack someone who is on annual leave?

This question was recently sent to our Workplace Advice Line.
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Can you sack someone who is on annual leave?

Can you sack someone who is on annual leave?

3 December 2020

Can we dismiss someone who is absent on annual leave?

This question was recently sent to our Workplace Advice Line.

Q One of our employees has received several warnings during his two years of employment and is on a final written warning. He's taken annual leave and won't be back until after Christmas. In his absence we have discovered further breaches of our company's code of conduct.

We'd like to dismiss him by sending a notice of termination to his home address. Is this allowed?

A While this circumstance is not considered by the Fair Work Act, awards or agreements, in the case of annual leave, generally the answer is no. The employer would need to wait until the employee returns from annual leave before giving notice of termination of employment (or payment in lieu).

The right of an employer to terminate an employee absent on paid leave is dependent on the type of leave. Industrial tribunals have usually determined that notice of termination by an employer will not be effective if it seeks to terminate the employee’s employment prior to or at the same time as a previously granted period of annual leave.

In this case, the Fair Work Commission used an example to illustrate the point. "For example if an employer gives an employee four weeks’ notice of termination and after one week the employee is on approved annual leave for two weeks and returns to work out the notice for one week, then the two weeks on annual leave must be absorbed by the notice period and the employee re-credited with the annual leave or they must be given an additional period of notice.”

The FWC established that the right to notice and the right to annual leave are independent and cannot be used to cancel out the other right.


Long service leave

It is presumed a similar situation exists where an employee is absent on long service leave, that being the employer must wait until the employee returns from long service leave before giving notice of termination.


Personal/carer’s leave

While notice cannot be given during a period of paid annual leave or long service leave, this may differ when an employee is absent on personal/carer’s leave.

Industrial tribunals have usually determined that an employer is entitled to give notice to an employee because the period of such leave is necessarily uncertain. This may differ however where an employee is absent on a quantified period of sick leave.

It should be noted an employer should not terminate an employee on the grounds he/she is absent on personal/carer’s leave. The employee could make a general protections claim to the FWC on the grounds the dismissal occurred while the employee was exercising a workplace right (entitlement to paid personal/carer's leave) or because the employee's temporary absence from work was due to illness or injury.

There may also be protection under the relevant state or territory discrimination law.

The bottom line: Generally, an employer is not permitted to give notice to an employee during a period of annual leave. If notice is given during that period, the period of notice will not commence until the employee’s return to work from annual leave.
 

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