One of our employees is currently on six weeks of annual leave. They have notified us in writing that they are resigning and have given 4 weeks’ notice as is required in their contract of employment. We want them to work out their notice period to do a handover. Can an employee resign whilst they are on annual leave and not work out their notice period?
An employee is free to resign from their employment at any time, regardless of whether they are on a period of paid leave. If an employee resigns and the notice period coincides with a period of annual leave, they will have deemed to have given and served their notice period whilst on leave, and an employer cannot require that employee to serve out their notice period at work.
If an employer wants the employee to work their notice period for the purpose of handover or training of a replacement employee, then this would need to be negotiated with the employee to come to an alternative agreement.
The parties could seek agreement to push out the date of the resignation to after the leave period to facilitate the handover, or they could seek agreement for the employee to shorten their annual leave period to come back to work for handover. However ultimately the employee cannot be made to do this as you cannot force an employee to come to work, cut their leave short, or require them to serve additional notice.
It should be noted however that an employer cannot terminate an employee when they are on annual leave and count that leave as their notice period. The notice period required to be given must be served in addition to the annual leave. The employee would return from leave and serve out their notice period or the employer would be required to make a payment in lieu of the notice period.
For further advice about employees giving notice when on leave or notice of termination in general, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
