Can notice of termination run concurrently with annual leave?
Can an employer may provide notice of termination of employment concurrently with a period of lawful leave. The answer is no. See Liquor, Hospitality and Miscellaneous Union and Another v Cuddles Management Pty Ltd (2009) FMCA 463, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others v Silcar Pty Ltd (2013) FWC 856 and Kentz v CEPU (2016) FWCFB 2019.
Nevertheless, and subject to the terms of the applicable enterprise agreement, the same principle does not apply to unpaid res and recreation leave.
“Characterised as the block of authorised non-work time which forms an integral part of the work cycles, the entitlement of the relevant employees, had their employment continued over the notice period, was to authorised unpaid non-work time in respect of the R&R period and working of and payment for any work-time within the cycle. Termination with immediate effect, subject to the payment made in lieu, was to the same effect – time off without payment in respect of the R&R periods and payment for the “hours the employee would have worked had the employment continued until the end of the minimum period of notice”, save that the employees were not required to work the work-time hours within the work cycle for which they were entitled to payment. The employees were paid what they were entitled to be paid had they remained in their employment during the notice period. Further, there was no practical inhibition of the opportunity of the employees to respond to changed circumstances, re-organise their lives and seek alternative employment.” (Kentz)