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  1. #1
    federboa is offline Registered Member
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    Default Resignation and annual leave

    Hi,

    I am thinking of quitting my job. As the Company I work for is not very reliable and I dont want to have the hassle with a payout for holidays I would like to take my annual leave during the last days of my time with the company.
    I thought about putting in my holidays in first for an appoval and than resign, so the last day of my holiday would be my last day of work. I am basically concerned that they refuse my annual leave after they have approved it (as part of a revenge).
    So my question is
    Once my holiday is appoved can they still change their mind and refuse my holidays later on (when I resign)? I know it is not uncommon that companies refuse leave for operational requirements.
    Does the 1 month I need to give notice include or exclude my holidays or doesnt it matter? I mean it is not specified in my contract, so 1 month is one month, doesnt matter if I am there or not, or?

    Thanks for your help!

  2. #2
    Neb-Maat-Re is offline Member
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    Arguably, they possibly could cancel your leave and make you work the month's notice, but what's cheaper for them - paying you for a month of working and then paying out your leave, or paying you for a month of leave?

    And do they really want a now even more dissatisifed employee hanging around for a month?

  3. #3
    federboa is offline Registered Member
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    How is that possible? Do you have any advice in which Act I can find that? A month notice is given in the contract, but where does it specify that it could not include annual leave?
    Yes, I would be more than dissatisfied and make work hell for everyone..

  4. #4
    Neb-Maat-Re is offline Member
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    Quote Originally Posted by federboa View Post
    How is that possible?
    You said it ...

    Quote Originally Posted by federboa View Post
    the Company I work for is not very reliable ..... I am basically concerned that they refuse my annual leave after they have approved it (as part of a revenge).
    I have no idea what your employment conditions are, but do they include a recall from leave clause? Leave usually is at the discretion of the employer. Once they learn you are leaving, they could in theory require you to give a handover.

  5. #5
    federboa is offline Registered Member
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    Hi again,

    my contract is based on common law. The annual leave clause does not include a recall from annual leave. It just says that annual leave should be taken at a time agreed between myself and the company. If there is no agreement the leave has to be taken at the companys direction.
    But as a ordinary person I would interpret this once the leave is agreed, they cannot withdraw that (as e.g. travel arrangement could already been made). Of course I would give a reasonable handover before I take the annual leave and than say bye bye..

    Any more ideas?
    Thanks for you help!

  6. #6
    Tiger is offline Senior Member
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    A word of advice from the employer's perstpective. Annual leave should never be taken as part of the notice period and this is something which should be included in policies as well as managers reminded of the fact. The reason is that the notice period is there so that the employer has an opportunity to find a replacement and ensure a handover before the departing employee actually leaves the business. Someone resigning and walking out is actually doing the wrong thing leaving their employer in the lurch - that is unprofessional and will not endear you to receiving a good reference from your company in future. Although however, there will be times when the employer wants the resigning employee to go immediately where their job is a potential security risk or where the relationship is so broken, this is the best way - in which case they pay you the notice.
    Legally however, once an employee leaves and is not returning to work, then the employment relationship is severed; no employer wants to continue to have employees on their books because they are on "annual leave". An example: At my last company, I discovered after the fact that the termination date an ex-employee and his manager thought was the correct date was not, Payroll got it right and the termination date was the date he stopped working. The problem? The guy had taken a company car to use on his annual leave but he didn't know he was not insured because his employment has been terminated. Thankfully he didn't have an accident or worse. Whatever happens, any unused annual leave you have will be paid out at termination so you are not going to lose that money. Without knowing what your job is, I would question the need for a month's notice. That is unreasonable for many lower level jobs whereas if you are in a specialised/professional field or in a management role, then a month's notice is reasonable. I recently advised a young Admin Assistant who had a 4 weeks' notice period in her contract, to give two weeks - there is little her employer could do - they can't stop you leaving - and in fact there were no issues. So my advice is go for the lessor notice period - this gets you out of there - your employer may not be happy but you'll be paid out your annual leave and in the future they just might give you a decent reference.
    If you apply for leave, have it approved then resign, chances are that if your relationship is as broken as you suggest, they might just finish you on the spot - albeit having to pay you your notice. Alternatively, they could turn around and quite reasonably withdraw approval for the annual leave in view of your resignation - you signed a common law contract aware of your notice period so your employer can expect that you understand that.

  7. #7
    Moz
    Moz is offline Senior Member
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    Quote Originally Posted by Tiger View Post
    Legally however, once an employee leaves and is not returning to work, then the employment relationship is severed; no employer wants to continue to have employees on their books because they are on "annual leave".
    Are you sure about this?

    My view is that in the absence of any additional agreement which overrides the employment agreement, the employment relationship is only legally severed at the end of the notice period, even if the person is on leave for the whole notice period.

    That's why companies use "gardening leave" to prevent people from taking another job (with the competition), even though the person will never go back to work with their current employer.

    Nevertheless, I agree that getting leave approved then handing in your notice is a pretty underhand thing to do and may cause your employer a lot of problems.

    It's probably worth including something in the employment contract about the company reserving the right to cancel annual leave arrangements in exceptional operational circumstances, such an employee resigning after an annual leave request has been granted!

  8. #8
    Tiger is offline Senior Member
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    Oh yes - I'm sure.
    Firstly, the term 'gardening leave' is normally applied to executives i.e. those senior managers who may have a notice period of 3 to 6 months in ther contract. They resign (or are terminated) but the company wants to lock them in to prevent them going to another job/competitor (there is also usually a restraint of trade clause for this level of employee) but does not want them around (the office) any longer so hence the term 'gardening leave' -the exec is forced to sit out the notice period at home and is paid for doing so - this is not annual leave.

    For the rest of us non executive types, our notice period can range from one week to four, in general. Someone resigns and there are two scenarios
    1) employee wants to leave early and requests this - the company may not like or want this - as I said before, notice periods are there for a reason - but if you negotiate*, perhaps compromise, it might be reduced and your last day of work with the company is the day you leave. Your normal pay is paid only up to the day you last work. The employee has waived his entitlement to any notice payment by requesting to leave before completion of the notice period. *As I said before there are some jobs eg admin, where four weeks notice is a bit over the top. It used to be that the generally accepted notice period was your payroll frequency so a fortnightly payroll meant two weeks' notice.
    2) Employee resigns but the company may prefer that individual goes on the spot (usually this relates to the position held (if in a sensitive area eg). In this scenario, the company must pay the employee in lieu of the notice period plus any unused leave entitlements.

    So my advice is
    a) if you want out, be upfront that you want to go immediately - more than likely your employer will agree; no one wants to keep a dissatisfied employee around who may be likely to 'contaminate' others in the workforce.
    b) If you just want to get out quietly, then work out your notice.
    c) if you want to go earlier, then negotiate - at the end of the day though, they can't prevent you from leaving - you'll be paid to your last working day and all leave entitlements paid out.

  9. #9
    Cottoneyes is offline Senior Member
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    Think the rules around ending of the employee / employer relationship legally varies depending on what is being discussed.

    For example, if notice period is paid out instead of worked out, the rulings all seem to say that no leave is to be accrued during the notice paid out. So for example, notice period is paid out on 4 May with 4 weeks notice to the end of May, the leave provision paid out is legally only that which is accured as at 4 May. Note that this is not the case when the employee takes the leave as part of the notice period.

    However, if that same person had a company vehicle (other than tool of trade), in some cases the employee is still entitled to have use of the vehicle during the notice period. It would come down to the contract. I've also seen this case as well when employees paid out notice period, particularly during redundancies, are still entitled to other benefits such as salary protection insurance when it was a normal benefit of their employment.

    Then legally under the superannuation laws, the notice period is still claimed as part of the employment relationship as super is payable on any notice period worked out.

    And finally, in relation to point c above, the employer can't stop you from leaving - correct. However they may have an entitlement to withhold from your leave entitlements the equivalent amount of notice not worked out. It is rare to be enforced, however it can be done in certain circumstances. I'd be checking with your employer during the negotiation if this would be the case

  10. #10
    Moz
    Moz is offline Senior Member
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    Tiger, just referring to your earlier post, I misunderstood what you meant when you said:

    "Legally however, once an employee leaves and is not returning to work, then the employment relationship is severed;"

    I thought you meant that if an employee is on leave for the duration of their notice period then the relationship can be assumed to be severed, by the employer.

    This of course would be an incorrect assumption by either party, because while on leave the person is still an employee, even though they are not returning to work. Also the terms of their employment contract are still in force.

    Obviously if an early departure and payout is negotiated, then the relationship is severed.

    As for notice periods, the NES is very clear on this;

    Not more than 1 year continuous service - Notice period 1 week
    More than 1 year continuous service, but not more than 3 years - Notice period 2 weeks
    More than 3 years continuous service, but not more than 5 years - Notice period 3 weeks
    More than 5 years continuous service - Notice period 4 weeks

    The relevant notice period increases by 1 week if the employee is over 45 years old and has completed at least 2 years' continuous service with the employer.

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