Can you dismiss someone who is on annual leave?

Can you dismiss someone who is on annual leave?
By Paul Munro on 18 April 2017 Can we give notice of dismissal to an employee who is absent on annual leave?

This question was recently sent to our Ask an Expert service.

Q We have an employee who is absent on four weeks' annual leave. He has received a number of warnings during his two years of employment with the company and is on a final written warning.

We have discovered the employee has transgressed on the same issue. Management wants to dismiss the employee, sending notice by registered mail to his home address. Our HR manager has questioned whether this allowable.

Can we dismiss an employee while he is absent on annual leave?

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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