Can my employer force me to take annual leave while I’m on unpaid leave or WorkCover?

Can my employer force me to take annual leave while I’m on unpaid leave or WorkCover?

When your employer pressures you to use annual leave during periods of unpaid sick leave or workers compensation, it can be hard to say no. However, employee rights concerning illness-induced absences are enshrined within Australian law.

When can my employer generally require me to take annual leave?

Under some registered agreements and awards, employers can direct their employees to take annual leave, but the requirement must be reasonable. Agreements and awards often list such a requirement in circumstances where employees have accrued significant amounts of annual leave or over periods of business closure (like Christmas or New Year). 

If your employment is not covered by an award or agreement, the National Employment Standards allows employers to direct their employees to take annual leave if the requirement is reasonable. 

An employee’s contract may also contain a clause permitting the employer to direct the employee to take leave. These clauses will generally align with the National Employment Standards or the relevant award/agreement. 

What if I am on unpaid sick leave?

Without making a reasonable requirement as referenced above, an employer cannot require an employee to use their annual leave. During periods of temporary absence for illness or injury, section 352 of the Fair Work Act 2009 (Cth) prescribes that an employer cannot dismiss an employee for that illness or injury. However, this protection only extends for three months unless the employee is on paid sick leave. After three months of unpaid leave, an employer may move to dismiss the employee, citing a lack of capacity to complete the inherent requirements of the role. 

What if I am on workers’ compensation?

Similarly, annual leave cannot be directed without the aforementioned reasons. If your employer seeks to terminate you because of your WorkCover claim or attempts to alter your role without a genuine reason, their conduct may amount to a breach of section 340 of the Fair Work Act 2009 (Cth). This will be the case where they have taken adverse action in the form of a dismissal or position alteration for a prohibited reason. 

If you have concerns about your leave entitlements, speak to an employment lawyer for clarification.

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