By Kelly Godfrey
Ms Stevens, a worker at IGA Horsley Park applied for annual leave for an overseas holiday. Her employer, however, refused her request and claimed she had abandoned her employment when she took the overseas holiday anyway.
Ms Stevens filed an unfair dismissal application in the Fair Work Commission (FWC) – Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park (2017).
The FWC found Ms Stevens had been unfairly dismissed on the basis that the refusal to grant the request for annual leave was unreasonable.
Section 88(2) of the Fair Work Act 2009 (Cth) provides that “the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave”.
The FWC provided the following guidance:
1. Respond to requests for annual leave within a reasonable timeframe.
On the facts of this case, IGA Horsley Park received Ms Stevens’ request for annual leave on 12 January 2017 for leave to be taken on 10 April 2017. However, it did not respond to the request until 22 March 2017.
The FWC found that Ms Stevens had provided a significant period of notice, which gave IGA Horsley Park “an enhanced opportunity to make arrangements to cover the absence”.
IGA Horsley Park was aware that Ms Stevens had arranged to travel overseas and she was at risk of losing $4,000 if the leave was not approved. This created an obligation on IGA Horsley Park to “communicate unequivocal refusal in a timely manner”.
2. The operational requirements of the employer’s business.
IGA Horsley Park had a leave block-out period over Easter and tried to use this as a reasonable basis for refusing Ms Stevens’ annual leave request. However, the FWC found that IGA Horsley Park’s delayed refusal to approve the leave meant it became unreasonable, preventing them from relying on the block-out period.
3. Document the refusal.
IGA Horsley Park tried to argue that as the employee did not have an approval to take the leave in writing she should not have assumed it would be granted. The FWC rejected this argument, saying that IGA Horsley Park should have ensured that “unequivocal documentary communication of any decision to reject any application for annual leave [was] made in a timely manner”.
The FWC was also critical of IGA Horsley Park’s conduct in sending letters by post to the employee’s home requesting a response to queries about her absence when they knew she was overseas.
Lessons for you
A well-drafted annual leave policy setting out the process to request leave, the circumstances when leave won’t be approved, how it will be approved and the circumstances for directing an employee to take leave, can assist in avoiding disputes with employees.
It is important to respond to requests for annual leave in writing and in a timely manner. Make sure employees are aware of any annual leave block-out periods well in advance of the block-outs.