Annual leave and notice of termination

Can an employer require an employee to take annual leave during a period of notice of termination of employment? The answer is no.

“An employee to whom notice of termination is given prior to going on annual leave or whilst on annual leave either loses the benefit of that annual leave as she or he has to seek alternative employment whilst on annual leave or she or he loses the benefit of the notice period as her or his pre-existing annual leave plans may mean that they are not able to seek alternative work during the notice period.

In my view the authorities establish the right to notice and the right to annual leave are independent and cannot be used to cancel out the other right. For example if an employer gives an employee four weeks’ notice of termination and after one week the employee is on approved annual leave for two weeks and returns to work out the notice for one week then the two weeks on annual leave must be absorbed by the notice period and the employee re-credited with the annual leave or they must be given an additional period of notice.

I therefore find that to the extent the employees annual leave ran concurrently with the notice period the employees are entitled to an additional period of notice or pay in lieu of notice equivalent to the period of annual leave taken during the period of notice.”



CEPU & Ors v Silcar Pty Ltd [2013] FWC 856 per Gooley DP