Is period of notice extended by any absence from work?

Q&A

Is period of notice extended by any absence from work?

Does paid or unpaid absence from work (such as personal leave or public holidays) that occurs during a period of notice extend the period of notice, so the date of termination of employment remains unchanged.

Does paid or unpaid absence from work (such as personal leave or public holidays) that occurs during a period of notice extend the period of notice, so the date of termination of employment remains unchanged. 

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Q  An employee recently tendered their resignation by giving one month’s notice as required under the contract of employment. The employee is employed under the Clerks – Private Sector Award 2010 and is employed in our Melbourne office. Since receiving notice, the employee has been absent on one week’s personal leave (which has been substantiated with satisfactory evidence). Before the date of termination there will also be a public holiday (the day before the AFL Grand Final in Victoria).

The employee’s manager has enquired whether the employee’s period of notice is extended beyond the current date of termination because of the absence on personal leave and the public holiday or are these absences included in the period of notice? The employee has also requested one week’s annual leave before resigning. Is the company required to agree to this request?
 
A  The period of notice does not change an employee’s entitlement to conditions under the relevant modern award, the National Employment Standards, a state or territory statute, or their contract of employment. This means that if the employee is ill during the notice period the employee can access any accrued balance of personal/carer’s leave. As soon as notice of termination has been given, the date of termination remains unchanged unless the employee and the employer agree to an extension. An employee who has given notice to the employer is required to work out the notice, except where prevented from attending due to illness or injury or where on an absence authorised by the employer.

An employee who is absent from work without reasonable cause during the notice period, may have wages docked for the period of the absence; however, the length of the notice period is not extended by the unauthorised absence, the date of termination remaining unchanged. 

Annual leave 

The employer may agree to a request by an employee to take annual leave during the notice period although the employer cannot unreasonably refuse to authorise annual leave. It may be reasonable in this circumstance for the employer to refuse the employee’s request for annual leave in this circumstance because the point of giving notice of termination of employment is to allow the employer sufficient time to fill the position. The period of notice  may also assist in facilitating a handover to the replacement employee. Note: the employer cannot direct the employee to take annual leave.  
 
The bottom line: Any paid or unpaid absence from work (such as personal leave or public holidays) that occurs during a period of notice does NOT extend the period of notice, so the date of termination of employment remains unchanged. The employer cannot unreasonably refuse an employee’s request to take annual leave; however, there may be reasonable business grounds on which to refuse a request for annual leave during a period of notice.
 

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