Q: One of our workers has threatened to take ‘sickies’ after we refused his request for 4 days of annual leave after the Labour Day holiday (our office is based in NSW). Do we have to pay him for those sick days?

Three other staff have already applied for similar time off at the same time, which has already been approved. We cannot afford to have any more many people away at that time as there will be too much work to catch up with as it’s the start of our busy season.

The worker has told us that he has made plans for those days and cannot cancel them.

He also stated that if the leave is not approved, he will “take sickies anyway so we cannot stop him either way”.

Our current leave policy clearly states that annual leave requests will be considered based on operational requirements and key staff availability. Approval must be obtained prior to taking the leave.

We are in the process of updating some of our policies and are planning to implement a leave policy whereby if the leave request is not granted, the employee will be considered to be on unauthorised, hence unpaid leave.

But this is not stated in the current leave policy.

What recourse do we have for employees who take the leave despite the request not suiting the business or being approved?

A: 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 employer and employee, though an employer cannot unreasonably refuse to grant an employee’s leave request.

Your next steps depend on whether you want to retain the employee or dismiss him, and whether you can grant the leave or not.

If you don’t want to dismiss him, we suggest you meet with him (followed up by a letter) informing him of his failure to follow proper procedure, that he cannot demand leave.

You may want to issue a warning for this.

You can also state that if he proceeds to take the leave he will be disregarding a lawful and reasonable direction, and that failing to return to work may be grounds for dismissal. Then if he does not return to work, you may have grounds to dismiss him.

His avenues to challenge the dismissal are unfair dismissal (assuming he has unfair dismissal protection) or adverse action (i.e. that you dismissed him for taking leave).

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.