Sisters in Law: How to manage employers forcing annual leave

The Queenslander said that companies are using any excuse to stop staff having fun, claiming his workplace had done something dodgy with his annual leave.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise on what to do if you get sick while on annual leave.

Question:

I was recently forced by my employer to take three weeks of annual leave as they said I’d accrued too much. I wasn’t very happy about it but I felt like I had no choice.

But then while I was on leave I got Covid and ended up sick in bed for over 10 days.

When I got back to work I asked if I could add those days back to my leave balance they said no. Surely if I was sick then I don’t have to count that as precious annual leave?

I feel like companies will use any excuse not to give us too much time off to have fun these days. – Jase, QLD

The man was sick after contracting Covid while on annual leave. Picture: iStock

Answer:

The short answer to whether your annual leave can be converted into sick leave is yes.

Before agreeing to this, your employer is entitled to ask for evidence that you were sick, such as a medical certificate from your doctor or a screen shot of your PCR test result.

The law also says that you are required to provide notice of taking the sick leave “as soon as practicable”.

It doesn’t matter that you had already booked and started your annual leave before you became sick – you are still able to ask your employer to convert your annual leave to sick leave retrospectively.

As your employer is refusing to swap your leave, you should speak with your trade union (if you’re a member) or the Fair Work Ombudsman.

Your employer is entitled to ask for evidence that you were sick, such as a medical certificate from your doctor or a screen shot of your PCR test result. Picture: iStock

If you’re still not able to resolve the issue then you can check your award or agreement on the Fair Work Commission website and apply for help if the dispute resolution terms allow it.

Jase, you should also be aware of your rights if your employer forces you to take annual leave again in the future.

The usual position regarding annual leave is that it should be taken by agreement between the employer and the employee. An employer cannot force you to take your leave.

There are, however, some exceptions to the general rule that you should be aware of as they may apply to your employment.

It is not clear what type of industrial agreement you are employed under, whether your employer has qualified for JobKeeper payments or how much annual leave you have accrued.

All of these things impact on what your employer is lawfully allowed to do when it comes to directing you to take annual leave.

An employer cannot force you to take your leave but there are exceptions to the general rule. Picture: iStock

Some modern awards and registered agreements allow an employer to direct an employee to take annual leave in certain circumstances.

If your employment is covered by an award or agreement, you should review the document to check its terms.

There may be rules about when an employer can direct an employee to take their leave (for example, if their leave balance is excessive), how much notice the employee should receive before having to take the leave and how much leave they can be directed to take.

If your employment is not covered by an award or an agreement, your employer can direct you to take annual leave only if their direction is ‘reasonable’.

Check your award or agreement to find out the rules when it comes to your annual leave. Picture: iStock

Whether or not their direction is reasonable will involve a consideration of the matters above.

So, for example, if you were provided with two days’ notice to take two weeks leave, which would result in you having a leave balance of just one week, it may be seen to be unreasonable.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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