As most employers and employees in Australia understand, accrued annual leave under the National Employment Standards of the Fair Work Act is to be taken “for a period agreed” and an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave; Fair Work Act 2009, sec 88. Consequently it follows that the dismissal of an employee for taking annual leave in circumstances where the employer has unreasonably withheld agreement will constitute an unfair dismissal.
“Therefore, in the particular circumstances of this case, the employer unreasonably refused to agree to the applicant’s request for annual leave. It follows that the applicant did not fail to comply with a reasonable and lawful direction of the employer and her failure to attend for work in accordance with the direction of the employer did not represent misconduct. Consequently, there was no valid reason for the applicant’s dismissal, either as stated by the employer in the letter of dismissal, or as otherwise discernible.”
Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park (2017) FWC 4626 delivered 12 September 2017 per Cambridge C