An employee has requested leave – with short notice – that their manager cannot approve as there are already three other team members on leave at the same time. The employee has told their manager that they have plans for those days that they cannot cancel. They also stated that if the leave is not approved, the employee will “take sickies anyway”.
Our current leave policy clearly states that annual leave requests will be considered based on operational requirements and key staff availability – and that approval must be obtained prior to taking annual leave. I intend to review and update our policies, including a requirement that if a leave request is not granted, an employee will be considered to be on unauthorised leave and it will therefore, be unpaid.
Can I enforce this now even though the policy does not include this requirement yet? What recourse do we have for employees who take the unauthorised leave?
It might be difficult to put the employee on unpaid leave, unless there is something in the employee’s contract, workplace policy or award/enterprise agreement which states that you can do so.
As you have stated, annual leave must be taken at a time mutually agreed between the employer and employee, though an employer cannot unreasonably refuse to grant an employee’s leave request. In this situation, given the inadequate notice and the employee’s full schedule it might not be unreasonable to refuse the leave.
Your next steps depend on whether you want to retain the employee or dismiss them, and whether you can grant the leave or not. If you don’t want to terminate their employment, we suggest you meet with them (followed by providing it in writing) informing them of the failure to follow proper procedure, informing them of the correct procedure they must take next time and that they cannot demand leave from you. You may want to issue a warning.
You can also state that if the employee proceeds to take the leave, they will be disregarding a lawful and reasonable direction, and that failing to return to work may be grounds for dismissal. Then if the employee does not return to work, you may have grounds to dismiss them.
The employee’s avenues to challenge the dismissal are unfair dismissal (assuming he has unfair dismissal protection) or adverse action (i.e. that you dismissed them for taking leave). You may want to seek legal advice about taking steps to reduce your exposure to these potential challenges.