There are a number of reasons for a contract of employment to end. It can be through an
employee handing in a letter of resignation to their employer or an employer providing an employee with notice of termination of employment.
Generally, a minimum notice period must be given unless an employee receives payment in lieu of notice. Due to the change in employment status, employees might wonder what leave entitlements they’re able to retain during their notice period.
In this article, we’ll explain whether employees can take leave during their notice period, the types of leave available and other important considerations.
Read along!
Can an employee take leave during their notice period?
Employees are entitled to leave during their notice period. However, the employer must provide approval for the leave.
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What is a notice period?
Notice periods refer to the time between when an employee hands in their letter of resignation and the final day of their employment. The last day of an employee’s employment marks the end of the notice period. Notice periods apply whether an employee is terminated by their employer or if they choose to resign.
The amount of notice an employee must provide or an employer must provide is based on many factors, such as an employee’s employment contract, modern award or enterprise agreement. Enterprise agreements are published by the Fair Work Commission.
Different types of leave that can be taken during a notice period
Annual Leave
Annual leave or holiday pay refers to the payment employees are entitled to from their employer while being absent from work. All full-time and part-time employees are entitled to 4 weeks of paid annual leave for every 12 months they work. You should be aware that casual employees aren’t entitled to annual leave.
Employers are required to pay employees what they would normally earn if they worked for these four weeks. For example, if an employee typically works 20 hours per week, the employer must provide them with 80 hours of paid annual leave.
Employees can take annual leave during their notice period. However, they must first receive approval of the leave from their employer.
Personal/ Carer’s leave and Sick leave
Employees can receive paid personal leave when they’re unable to work due to personal illness or injury. Employees are entitled to carer’s leave if they’re required to take care of an immediate family member or household member during an emergency or who’s suffering from an illness. Sick leave can include stress and pregnancy-related illnesses.
All full-time employees are entitled to a minimum of 10 days of person/carer’s leave a year under the national employment standards. Part-time employees are also entitled to the same amount on a pro-rata basis. You should be aware that casual employees aren’t entitled to paid person/carer’s leave.
Employers must pay-full time employees the equivalent of 10 regular working days when the employee is on personal/carer’s leave. In regards to part-time employees, the amount of leave they’re entitled to depends on the number of hours they typically work each week. For example, if a part-time employee works for exactly half the hours of a typical full-time employee a week, they’ll receive half the amount of sick leave a full-time employee receives, which is five days per year.
Two days of unpaid carer’s leave is available to all employees, including casual employees. This leave is available to employees if their household member or immediate family member requires their support or care due to an emergency, sickness or injury.
Employees can take paid personal/carer’s leave during their notice period if they provide notice as soon as possible. Employees may be required to supply evidence to support their leave request, for example, a medical certificate, if their employer requests it.
In the event that an employee doesn’t have any paid sick leave remaining, they can take unpaid sick leave during a notice period. However, under the Fair Work Act 2009(Cth), they’ll be required to provide their employer with as much notice as possible and evidence.
Compassionate leave
Compassionate leave refers to leave an employee can take if any of the following occurs:
- When an employee’s household member or immediate family member passes away or suffers a life-threatening injury or illness
- An infant in their household or immediate family has a stillbirth
- The employee experiences a miscarriage
- The employee’s current de facto partner or spouse experiences a miscarriage
An immediate family member can be any of the following:
- Sibling
- Grandparent
- Child
- Spouse
- Former spouse
- De facto partner
- Former de facto partner
- Grandchild
- Parent
Full-time and part-time employees are entitled to compassionate paid leave whenever they meet the eligibility criteria. The payment they receive is the equivalent of two of their regular working days. Casual employees are only entitled to unpaid compassionate leave.
Employees can take compassionate leave during their notice period. However, employees are required to provide their employer with notice as soon as possible. Furthermore, employers can request evidence from an employee as to the purpose of the compassionate leave. Supporting evidence can include a statutory declaration or a funeral or death notice.
Compassionate leave may not be granted if an employee fails to provide evidence to their employer after their employer has requested it. However, an employer’s request for evidence must be reasonable. Employees must outline when and for how long they intend to take compassionate leave.
Parental leave
Parental leave refers to leave taken from work following the birth or adoption of a child. Unpaid parental leave is available to all employees for a period of 12 months. Furthermore, employees can request an additional 12 months of parental leave.
Parental leave can include any of the following:
- Adoption leave
- Maternity leave
- Special maternity leave
- Paternity and partner leave
Employees can take parental leave during their notice period.
Long service leave
According to the Fair Work Ombudsman, long service leave refers to leave provided to employees who have worked for the same employer for a long period of time. The amount of long-service leave an employee is entitled to depends on the laws of the state or territory they work in.
An employee can take long-service leave during their notice period. However, if they don’t use all of their long-service leave, they will be entitled to a long-service leave payment in their final pay.
Family & domestic violence leave
An employee is entitled to take family and domestic violence leave where they are facing abusive or threatening behaviour from their close relative. A close relative of an employee can be their:
- Sibling
- Grandparent
- Child
- Spouse
- Former spouse
- De facto partner
- Former de facto partner
- Grandchild
- Parent
There are five days of unpaid family and domestic violence leave provided to every employee per year. This type of leave can be taken by an employee during their notice period.
Key Considerations
You should also be aware of the following:
- As an employer, you should be aware that you can’t force an employee to take leave during their notice period
- As an employee, if you believe you haven’t received all the entitlements you were entitled to following the end of your notice period, you can make a complaint to the Fair Work Ombudsman to ensure that you receive all your entitlements
- As an employer, you need to be aware of the requirements outlined in an employee’s contract or enterprise agreement and ensure that you’re complying with any leave requirements
- You should be aware that notice periods can include public holidays and that they don’t lengthen an employee’s notice period
Conclusion
Ultimately, employees can take leave during their notice periods. If you’re an employee and are unsure of which leave entitlements you’re entitled to, you should hire a lawyer for legal advice.
Contrastingly, if you’re an employer and are not sure which leave entitlements your employee is entitled to, you should also hire a lawyer to make sure you avoid any legal consequences.
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