The end of an employment relationship can be initiated for numerous reasons, with the employee handing in a letter of resignation, or the employer delivering written notice of dismissal. In most situations, a minimum notice period must be given, unless payment is made in lieu. Given the impending change in relationship status, this raises the question of what leave entitlements employees retain during this time.

This article will discuss the types of leave available to employees during the notice period, and how employees may use them.

Annual Leave

Annual leave, or holiday pay, entitles employees to payment from their employer while being absent from work. Significantly, casual employees are not entitled to annual leave. However, all full-time and part-time employees in Australia receive a minimum of 4 weeks of annual leave per year.

The amount which employers must pay employees for these 4 weeks is equivalent to what the employee would normally earn from working for this length of time. For example, if the employee normally works 20 hours per week, the employer must pay them the same amount as what they usually pay for 80 hours of work.

Most importantly, employees can take annual leave during a notice period. However, in order to do so, they must have their employer’s consent.

Sick Leave

Employees can receive paid sick leave, or personal leave when they cannot work due to personal illness or injury. This can include but is not limited to, stress and pregnancy related illnesses. Significantly, all employees except for casual employees are entitled to paid sick leave. Indeed, full-time employees receive a minimum of 10 days of paid sick leave per year. Part-time employees receive the same amount, but on a pro-rata basis.

As such, employers must pay full-time employees up to the equivalent of 10 days of work per year while the employee is on sick leave. As for part-time employees, the amount depends on how many hours they typically work per week. If they work for exactly half the amount of time of a typical full-time employee in a week, they will receive payment for up to half of 10 days, that is, 5 days per year. If they work for a quarter of the time, employers must pay for up to 2.5 working days per year.

Most significantly, employees can also take paid sick leave during a notice period, if they provide notice of leave as soon as they can. They must additionally supply evidence, such as a medical certificate if the employer requests it. Where an employee has no more paid sick leave remaining, they can take unpaid sick leave during a notice period. However, they must give their employer notice and evidence to do so.

Important to Note

Employers cannot force employees to take leave during the notice period.

Conclusion

During the notice period, full-time and part-time employees can take various types of leave. Indeed these types of employees can use annual leave, so long as they have their employer’s consent. They may also use paid sick leave if they provide notice, as well as evidence of their illness upon request. Alternatively, they can take unpaid sick leave during this time, if they give both notice and evidence to the employer. In any case, however, employers cannot compel employees to take leave in this situation.

For further advice on employee leave entitlements, notice periods, and finalising the end of an employment relationship, you may wish to speak with an employment lawyer.

Have more questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

 

Jaclyn Ling

Jaclyn is a Legal Intern at LawPath as part of the content team, with a keen interest in how technology can improve accessibility to the legal services industry. She is currently studying a Bachelor of Commerce - Professional Accounting and a Bachelor of Laws at Macquarie University.