Leaving your job and annual leave

dunndog

Eats Squid
Hey all, well i did a search but nothing came up..:rolleyes:
I'll be calling the Fairwork ombudsman about this tomorrow, but last time I called them I was on hold for almost 45 mins!! So thought i'd put it out here to see if anyone has any knowledge/expertise in this field..

So basically, I'll be finalising details this week before accepting a job offer. At this point i will be giving 2 weeks notice at my current job. My 2 weeks will basically be the 2 weeks after this coming week. The spanner in the works here is that I'm going to Fiji - guess when - that exact 2 weeks. The annual leave is booked in at work, they know and it's all good. They don't however have any clue that I'm about to leave them. So moral issue aside, if I were to give 2 weeks notice which is actually going to be spent on annual leave instead of physically at work will this legally be constituted as my 2 weeks notice?
I have seen the way they throw the book at people when they leave, they really do turn into middle aged big sooking babies and throw the proverbial book at them.
If it does constitute legal notice, then i'll gladly spend that time diving, lazing and drinking at the pool bar (with you Dozer if you read this!!) but if not I'll wait till I get back to give notice, however I doubt my new employer will really want to wait a month all up..
Anyone have any experiences similar to this or know the legals around it?
For the record I'm a tradie in victoria, but am under a national award...
 

Mtb1speed

Likes Dirt
Hey bud - I work as an IR/ER manager and can give you good news. There is not actually any requirement for an employee to give any notice when leaving employment. There is however an onus upon an employer to give an employee notice when they are terminating the employment and a lot of people confus this and think it goes both ways, it doesn't. This is unless you have signed an employment contract saying that you will give two weeks notice. Now I don't know any employment specialist/lawyer that would be cheeky enough to try and put that in a contract other than for high paying exec positions. And if it is a simple contract put together by an average Joe then it is likely missing some critical clauses for its operation. The other key document to check is any certified/enterprise agreement that may be in place. But these all need to meet a fairness/no disadvantage test with FWA and wouldn't pass with a clause like that.

So what would I do - I would give immediate notice and leave. They have no legal right to withhold any monies owed to you. And if they try to withhold any, that's when you go to ombudsman.

PLEASE NOTE this is not legal advice. :) got to say that.
 

Steve-0

Likes Bikes and Dirt
Not totally answering your question but in most cases that I've seen, When you give in your notice they want you to take annual leave. 1) They don't want you around if your not going to contribute and 2) They usually prefer to give you annual leave then pay it.

Only reason they'd be upset is because they have zero time with you to discuss unfinished business and tie up loose ends.
 

dunndog

Eats Squid
Mtb1speed: Are you sure? This is from the ombudsman website:

(QUOTE)What happens when my employee resigns?

Under the modern award, if an employee resigns or ends their employment, they need to give you notice of termination. The amount of notice they have to give you is the same as the amount of notice you have to give them under the NES (you can find this information using the link above), except that your employees don’t need to provide additional notice based on their age.

If an employee does not give you the correct amount of notice of termination, you can withhold money from their final pay equal to the amount they would have earned if they had worked during the notice period.

Note: An employee’s final pay includes any outstanding wages (including penalty rates and allowances), unused annual and long service leave, redundancy payments (if applicable), and pay in lieu of notice of termination (if applicable). You should also ensure you make the required payments into the employee’s superannuation fund. Further information is available at Final pay.

Example
Amy has been working full-time for 3 and a half years. Amy decides to resign and gives her employer, Lyn, 1 week's notice.

Under the NES, the notice period is 3 weeks for an employee who has worked 3 - 5 years; Amy should have given Lyn 3 weeks’ notice. Lyn advises Amy that she will withhold the equivalent of 2 weeks' wages from her final pay to cover the additional 2 weeks’ notice that she did not provide.

For information about unfair dismissal, the Small Business Fair Dismissal Code and what to pay your employees in their final pay, visit Termination.(QUOTE)

I'm pretty sure an employee does need to give notice, the last guy that left gave 2 weeks, they came back at him and made him stay for 4 weeks as he'd worked for them longer than 5 years. This was the first and only time i'd ever heard of an empoyer doing this, and really it was done out of spite, they were total pricks to him for the whole time. If he just cracked it and left, anything short of that period would have been taken out of the annual leave they owed him.

Steve O: Yeah pretty much figure the same, that's kinda the moral dilemma, if it all happens say wednesday, I tell them thursday, then effectively i'm giving them 2 days which is a bit rough.. then again, that's life, put it down to bad timing (for them)
 
Last edited:

Mtb1speed

Likes Dirt
I can do some research for you, but it will hve to happen tomorrow. Are you able to PM me your employers name and number of employees they have?
 

'Ross

Eats Squid
Leave the job under good terms and be totally up-front in how you go about it, that's my only advice. If they think you are being shifty they are more likely to try and withhold money. Even if they are opposed to what you do if you spell it out in a clear and reasonable manner its pretty hard to argue with. If you worked the hours or whatever you needed to do to accrue the annual leave you are entitled to it.
 

Alec McJo

Likes Bikes and Dirt
Usual Disclaimer - this is not legal advice.

Anyway, my dad's been a HR manager for 25 years or so, and according to him you can give your 2 weeks notice on the day you go to Fiji, there's no requirement for you to be there during the 2 weeks notice. But you'd be kinda smarter to give the notice now and get the annual leave paid out in your last pay... just saying.


(Also, he's been in the hotel industry all that time - so there's of course a slight chance it's different for a tradie)
 

dunndog

Eats Squid
I totally intend to be up front and honest, got nothing to hide and no need to lie.. it's just bad timing really, but it's purely coincidental and can't be helped. Just don't wanna make the situation worse for either party and would hate to leave on bad terms.. although that seems to be the standard way it ends up given the way they are toward people when they leave..
AlecMcJo, I'll give notice as soon as the details of my new job are done and it's an official offer and acceptance, thing is that will be Wednesday at the best, and could be Friday even..
 
Last edited:

Nerf Herder

Wheel size expert
Re: Notice ... it would be outlined in your employment contract, which most if not all of us have these days ... this dictates the notice period.

Re: Annual leave, your entitled so no issues there ... however, in most employment contracts the employer has a caveat about annual leave taken at their discretion. They'd have to really be busy or hate your guts to revoke the leave ... particularly if you requested it quite some time ago and have already paid etc etc.

All comes down to negotiation skills and whether you like burning bridges ... I'm a burning bridges kinda guy ... good luck and congrats.
 

fjohn860

Alice in diaperland
So I don't just start another random thread, I thought I would ask this here...

If you were asked to go into work during the Xmas shut-down (forced annual leave), what would your expectation be in regards to pay rate?

Back story is the storeman at my work was asked to go in to do a few things and I said put in your time as overtime. Which he did.
Accounts have come back and said they will only pay half rate :mad:
 

beeb

Dr. Beebenson, PhD HA, ST, Offset (hons)
So I don't just start another random thread, I thought I would ask this here...

If you were asked to go into work during the Xmas shut-down (forced annual leave), what would your expectation be in regards to pay rate?

Back story is the storeman at my work was asked to go in to do a few things and I said put in your time as overtime. Which he did.
Accounts have come back and said they will only pay half rate :mad:
It technically depends on whatever EBA/contract he's on.

But baseline expectation in my industry would be call-out fee and overtime loading for the hours worked.
 

LPG

likes thicc birds
So I don't just start another random thread, I thought I would ask this here...

If you were asked to go into work during the Xmas shut-down (forced annual leave), what would your expectation be in regards to pay rate?

Back story is the storeman at my work was asked to go in to do a few things and I said put in your time as overtime. Which he did.
Accounts have come back and said they will only pay half rate :mad:
I'd say by the book and without further negotiation he would get paid normal time for normal days with penalty rates for weekends/public hols/after/beyond normal hours (and his leave would be retracted so it would be available for another time). I don't see an issue with his manager (you?) offering a higher rate due to the inconvenience of pulling him off leave. Sounds like accounts aren't honouring it which is really a discussion between the manager and accounts to make sure things are made right.
 

fjohn860

Alice in diaperland
Should've mentioned, no EBA/official award in place.

I'm not his manager, but the manager in question is a spineless gronk so no chance of him fighting it (in fact he agrees).

My thoughts are that it should be either normal time, with the a/l time reimbursed or overtime rates and the a/l stands...
 

Chriso_29er

Likes Bikes and Dirt
Should've mentioned, no EBA/official award in place.

I'm not his manager, but the manager in question is a spineless gronk so no chance of him fighting it (in fact he agrees).

My thoughts are that it should be either normal time, with the a/l time reimbursed or overtime rates and the a/l stands...
I agree with your thoughts. Obviously cheaper for the company to go with option one, and would seem fair to me.
But I'm just a wage slave, so not sure on all this OT shenanigans everyone always goes on about :(
 

leitch

Feelin' a bit rrranty
Wait he had to work while on leave and they're paying half his regular rate? Fuck that. Rate should be whatever it is normally (assuming it was the non-public holidays between xmas/NY) and he should be reimbursed the leave he didn't get to take. Would be nice to get it at penalty or o/t but unless he worked one of the actual holiday days that's not going to happen.
 
Top