Is my employer allowed to ‘cull’ my leave?

Recently, before applying for a months-long course, I checked my leave entitlement. We have something called Professional Development Leave (PDL) and it accumulates over time. I have been in my job for many years and have accrued a lot of PDL, but I was shocked to discover that since last year it has been “culled” at hours per pay cycle. It has disappeared into thin air. The same is about to happen for my accumulated sick leave.

If HR maintains this auto-culling of PDL and sick leave, doesn’t it make a perverse incentive of annual attendance at resort-style conferences for “continuing education”, and for unethical colleagues to feign illness as sick leave is due to expire?

So far, the HR department has been adamant that they will not restore my entitlements. Should I formally appeal their decision with help from an external body?

Some employment contracts may allow your workplace to deduct certain types of leave, but it’s a different story when it comes to your legal entitlements.Credit: John Shakespeare

Your question came as a bit of a surprise to me. Although I’m familiar with the use-it-or-lose-it principle when it comes to leave, I’ve never heard of leave being removed in regular increments as a kind of continuing punishment for or deterrent from accruing “too much”.

I asked Professor Joellen Riley Munton from the faculty of law at University of Technology Sydney about your questions, and she told me that you may have a legitimate complaint, specifically in relation to the sick leave.

Munton explained that under the National Employment Standards (NES), all permanent (or non-casual) employees accrue what used to be called sick leave – it’s now called personal/carers’ leave. And this is important as you consider whether to appeal.

Your accrued leave seems to me apt recompense for your long and uninterrupted service. A well-earned safety net.

“According to Section 96 of the Fair Work Act 2009, full-time permanent employees are entitled to 10 days of paid personal/carers’ leave each year. The entitlement is pro rata for part-timers, and it does accrue from year to year. It cannot be cashed out, let alone ‘culled’,” Munton said.

“So, to the extent that this employee’s leave balance represents the statutory entitlement, it can’t be taken away. That said, it also isn’t paid out upon resignation or retirement in the way that accrued annual leave is.”

You mentioned in your longer email that you felt you were being penalised for being “happy and healthy” over a very long career, and that certainly seems unfair to me.

What if something does happen – an illness or some other personal matter – that requires you to take a long time off work? Your accrued – and, crucially, untouched – leave seems to me apt recompense for your long and uninterrupted service. A well-earned safety net.

Munton said you might also be in a work situation where you now have more leave than you would have accrued under the NES.

“Some people do have higher amounts of sick leave because of enterprise bargaining rights or contract terms. The additional amounts are not necessarily accrued and can be capped.

“For instance, when I was at Sydney University, they had an enterprise bargain allowing 50 days a year, and it could accumulate to a maximum of 100 days. But it never got higher than the greater of one’s NES entitlement or 100 days.”

The question then, said Munton, is have you always used your NES entitlement up? It sounds from your full email to me that you haven’t, and what you have left can’t be drained.

As for your professional development leave, that’s a different story.

“There is no NES entitlement to this kind of leave. The arrangements at your workplace might be that you are supposed to use that each year,” said Munton. She added that a policy like this might be there to encourage employees to keep their skills fresh.

Whether you should appeal is really up to you. Munton said a polite conversation with HR, seeking further clarification, might be a better first step. But she was keen to underscore the fact that, as always, specific and reliable legal advice is impossible to provide without all the details – including an employment contract.

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