Do public holidays extend a notice period?

Do public holidays extend a notice period?
By Paul Munro on 6 April 2017 Is a notice period extended if it includes public holidays or the employee takes annual leave?

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

We have a full-time employee who has given four weeks’ notice of termination of his employment as required under his contract of employment. The period of notice will include the holidays over the Easter break, as well as the Anzac Day holiday. The employee also took five days’ pre-approved annual leave during the notice period.

The employee is covered by the Clerks – Private Sector Award 2010, which requires the employee to give the same notice as that required by an employer under the National Employment Standards. The modern award does not indicate whether the period of notice is extended by any days the employee is absent during the period of notice.

Can we insist the period of notice be extended by the period of annual leave and the three public holidays, meaning the date of the employee’s resignation is extended by nine working days?

A An employee who has been given notice by an employer, or has given notice to an employer, is required to work out the notice, except where prevented from attending due to illness or injury or where an absence is authorised by the employer.

When notice is given by the employer, an employee who is absent from work without reasonable cause may have wages docked for the period of the absence. However, the length of the notice period is not extended by the unauthorised absence and the date of termination remains unchanged.

An employer may accept an application by an employee to take annual leave during the notice period, and cannot unreasonably refuse to authorise annual leave. Also, an employer cannot direct an employee to take annual leave.

Paid absences of annual leave, personal/carer’s leave, public holidays, long service leave, job search entitlement, jury service, compassionate leave, etc., would count as part of the period of notice.

This principle applies regardless of which party has given notice of termination of employment. Therefore, the original date of resignation would remain the date of termination of the employment.

The bottom line: Once notice of termination has been given by either party, the date of termination remains unchanged, whether an absence which occurs during the period of notice is authorised leave, such as annual leave or a public holiday, or an unauthorised absence (which is not paid).

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