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Christmas break: can you refuse annual leave requests?

This question was recently sent to our Workplace Advice Line.
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Christmas break: can you refuse annual leave requests?

Christmas break: can you refuse annual leave requests?

18 November 2020

Can we refuse an employee's request for annual leave over the Xmas period?

This question was recently sent to our Workplace Advice Line.

Q An employee has requested four weeks’ annual leave beginning mid December. Management wants to refuse the request as this is our busiest period of the year.

It is our understanding that the National Employment Standards state that an employer must not unreasonably refuse an employee’s request to take paid annual leave. The employee’s work colleagues have also told management it would increase their workload if the employee was absent.

Do the provisions in the Fair Work Act give a unilateral right to an employee to request annual leave at any time? Of can we refuse the request because of business requirements?

A The Fair Work Act (s88) states that annual leave may be taken for a period agreed between an employer and an employee although the employer must not unreasonably refuse to agree to a request. While this does not provide an employee with a unilateral right to take annual leave at any time, an employer must have an objective reason to refuse an employee’s request for leave.

An employer should consider each request for annual leave individually based on the specific circumstances. The reason(s) for any refusal of a request should be communicated to the employee.

The National Employment Standards do not explain the meaning of ‘unreasonably refuse’ in this context, although the taking of annual leave may also be subject to the provisions of an applicable modern award or enterprise agreement.

Relevant factors to be considered include:

  • whether the employee has accrued annual leave
  • the proposed leave period
  • operational requirements during the proposed leave period
  • whether any detriment will be caused to the business, and
  • the reasonableness of the period of notice given by the employee to take leave.


Operational requirements

In this case, consideration of the employer’s operational requirements is a reasonable factor in refusing a request, particularly because the employee’s absence may impact on the efficiency of their work group.


Company policy

A company policy on annual leave could identify the circumstances whereby a request for annual leave may be refused by an employer.

This may help alleviate any potential disputes with employees regarding the taking of accrued annual leave. For example, the policy could identify particular times of the year where a request for annual leave may be refused due to the operational requirements of the business.

The policy could also indicate those times of the year when annual leave must be taken by employees as the business may be closed down due to operational requirements.

The bottom line: An employee does not have a unilateral right to take annual leave at any time, however an employer cannot unreasonably refuse an employee’s request to take annual leave.
 

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