The FWC has the power to resolve disputes concerning the JobKeeper payment.
In the case of McCreedy v Village Roadshow Theme Parks Pty Ltd (2020), the FWC ruled as to whether an employee can refuse her employer’s request that she take her accrued annual leave.
KEY TAKE OUTS:
- Is it really your entitlement to take or can you be forced to take annual leave? This is the question currently before the Fair Work Commission (“FWC”).
The employee had 22 years of service. She had accrued 9.3 weeks’ annual leave and 8.6 weeks’ long service leave. Due to the Covid-19 pandemic, the employer stood down the employee on 23 March 2020 and requested her to take a day of annual leave per week until September 2020, or until the leave balance reached 2 weeks or 4 days, respectively.
The employee objected the request on grounds that it was unfair to her as a long-standing employee for her leave balance to be reduced to 2 weeks. The employer had considered that the amount of leave left would be the same amount as those employees with a significantly less amount of service and leave accrual.
The test is whether an employee has refused such a request unreasonably, not whether the employer’s request is reasonable.
The FWC ruled that it was unreasonable for the employee to refuse the request. The FWC noted the employee had little to no regard to the employer’s policy.
It is important to note that the employer had a company policy on applying for leave.
The size of the employer is not relevant when exercising its right to request employees to take a paid annual leave.
A timely reminder for employers and an appropriate option in which they may exercise if they require their employees to take a leave.
ABOUT KARENA NICHOLLS:
Karena is a Partner at Coutts Lawyers & Conveyancers and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach which has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.
For further information please don’t hesitate to contact:
Karena Nicholls
Partner
karena@couttslegal.com.au
1300 268 887
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
