Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6812.htm

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Can your employees take annual leave as long as they give you plenty of notice? Or do you have busy period where annual leave cannot be taken? Are these restriction in the contract of employment, backed up by company policies?

Background

The applicant in this matter:

  • Worked each Saturday as a Driver to carry out a milk delivery run commencing work at around 4.30 am before finishing at midday.
  • Also had a full-time job working for another employer in a factory Monday to Friday.
  • Claims that he received two verbal approvals to take leave over the Christmas / New Year period so that he could see his wife’s auntie who lives in the Philippines; and that these approvals were in April.
  • Having received, what he thought to be an approval, went on to book flights to the Philippines.
  • Having returned from the Philippines, he received an email terminating his services due to abandonment of employment.

The respondent employer:

  • Stated that it had to push the applicant to put in a formal request for annual leave; providing him with a final warning for not so in a timely manner.
  • Having finally received the application for annual leave, promptly rejected the application.
  • The applicant’s Letter of Employment at the time he was first employed indicated that any requests for annual leave in the period from December to mid-January would be automatically rejected as these were busy periods for the business.
  • This was also set out in the “Staff Welcome Book” issued to the applicant on his appointment and signed-off by the applicant.

The Commissioner:

“…there are a number of circumstances that need to be taken into account in this whole sorry saga surrounding the termination of [the applicant’s] employment. A number of those circumstances provide examples of what might be described as prevarication, or perhaps equivocation and evasion, with both parties dancing around what was the reality”.

Finding

In short, the Commissioner found that the period of leave taken had less to do with an ailing auntie residing in the Philippines and more to do with the fact that this was the shut-down period of the factory, which was his full-time job.

The application was dismissed.

Commentary

The employer in this matter had a specific restrictive clause in the employment letter, which was supported by its policies. It was this written (rather than verbal) evidence that “won it” for the employer.