Q: We have an employee who has resigned after just 6 months of service. He is not covered by an award or enterprise agreement.

The employee requested 2 weeks’ annual leave in April this year within the first 6 months of service. His contract states that leave can be granted within the first 12 months on a pro rata basis at the managing director’s discretion. The leave was granted on this basis and 2 weeks’ leave was taken.

Can we now request that the employee repay the monetary value of the annual leave that was taken?

A: It doesn’t appear there would be a reason to request the employee to repay the annual leave in this case. Under the Fair Work Act 2009 (Cth), employees are entitled to 4 weeks of annual leave a year. If the employee has served a full 6 months, this would mean he would have accrued a 2-week entitlement.

If the employee took leave in excess of this amount, you would need to point to a contractual provision that allows you to withhold a certain amount from monies otherwise due to him on employment termination to offset the debt. If you don’t have this, you would need to recover the amount through the courts, which can be a costly and time-consuming process that is likely to outweigh the benefit of recovering any debt.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Annual leave for current advice.