By Charles Power
Quite often, we get a number of subscribers who email us wanting to know the answer to the same question.
When this happens, I immediately flag those questions (and their answers!) as good ones to share with you in the Bulletin.
Over the last couple of weeks, I’ve noticed a number of subscribers asking the following question (or something very similar to this):
What happens if an employee is on annual leave but they or a member of their family get sick while they are on that leave? Do I have to change their leave from annual leave to personal/carer’s leave?
Here’s how our experts responded:
Yes. Section 89(2) of the Fair Work Act states that if the period during which an employee takes paid annual leave includes a period of any other leave (i.e. sick leave), the employee is not taken to be on paid annual leave for the period of that other leave or absence.
Therefore, you must re-credit the employee with annual leave for the duration of the illness and deduct the equivalent sum from their sick leave balance.
If you’re a subscriber to the Employment Law Practical Handbook service and you can’t find the answer you need in your handbook, you can send your question through to the Workplace Helpdesk and get a response from an expert!
For more information on this and other benefits of subscribing to the Employment Law Practical Handbook, click here.
Until next time…
And now over to our editor-in-chief Charles Power…
If you are recruiting a new employee, you might be unsure about whether you have an ongoing requirement for their services. For example, you may be considering offering them a fixed term contract for 12 months.
This would mean that, absent any agreement to the keep the employment ongoing, the contract and employment would end upon the expiry of the 12 month term without exposing you to redundancy pay, notice or dismissal claims.
However, when you are creating a fixed term employment contract, you need to be sure about what you are including.
Before creating a fixed term contract, make sure you ask yourself the following questions:
- Do you want to use this contract to employ people for a true ‘fixed term’ for 12 months? This would mean that you would need to restrict your right to terminate employment within the 12 month term and you could not have a probationary period. You could provide in the contract for the right to terminate early in a redundancy situation or if the employee’s performance remained unsatisfactory after you have given a certain period of notice to improve it, but you could not end the relationship simply because the employee was not a good fit or unsuitable. The advantage of this type of contract is that you could end the contract early without giving any notice. The disadvantage is that you have less flexibility in terms of the grounds for termination.
- Do you want a contract for a maximum term of 12 months? By choosing to use this type of contract, you can end the contract at any time for any lawful reason during the 12 month term – but you would need to give at least one week’s notice.
Remember, in both cases, if the fixed term or maximum term contract is renewed – either deliberately or simply by both parties working on past the expiry date – then the contract is likely to convert in effect to an ongoing contract. This will attract obligations for you in respect of notice and – in cases of redundancy – severance pay.
Employment Law Practical Handbook