Most people can appreciate the value of taking time to rest and recharge, and in Australia, taking leave is a workplace right, meaning all employers need to have an understanding of their obligations around providing leave.

In our last article we discussed the importance of having a leave policy in place so that employees understand expectations and the limitations around taking leave. We also touched on one of the challenges employers face when managing leave requests, dealing with multiple requests for the same period. While accruing and taking leave should be relatively simple, without a clearly communicated policy and procedure, managing leave can be problematic.

What if an employee plans to takes leave without approval?

As an employer, dealing with overlapping leave can be challenging enough, but what if you already have several of your team taking planned leave at the same time, and then another employee makes a leave request for that same period? They haven’t given adequate notice, and when you explain the situation, the employee states that they have plans for those days that they cannot cancel, so if the leave is not approved, they will “take sickies anyway”.

Although an employer cannot unreasonably refuse to grant an employee’s leave request, in this situation, given the short notice and the number of other staff away, it could be reasonable to refuse this leave request. Its important to explain to the employee the reason for your decision, and state that if they do proceed to take the leave, and not show up to work, they will be disregarding a lawful and reasonable direction, and that failing to return to work may be grounds for dismissal.

Ensure your policy clearly states that annual leave requests will be considered based on operational requirements and key staff availability, and that approval must be obtained prior to taking annual leave.  Highlight to the employee the fact that leave needs to be taken at a time mutually agreed between the business and employee, and may be declined where it will significantly impact business operations.

What options do employers have when an employee takes unauthorised time off?

Let’s say, despite your discussions, the employee proceeds as you suspected, and calls in sick on those same days they had requested leave. Disappointing, but it does happen and this is where having your discussions documented and a policy to refer back to will be beneficial.

As an employer, how you respond to this apparent defiance will depend on investigating the validity of the sick leave, and whether or not you want to retain the employee in your team.

Firstly, you will need to determine whether the employee has genuinely been sick and taken leave. While they may have suggested they intended to call in sick if you didn’t approve leave, it is best to first check in case being sick coincidentally fell on the same dates. Employers can request a medical certificate for any period of sick leave, and can contact the medical professional that issued the certificate to confirm the validity of this document. You won’t be able to ask why they were issued a certificate however. There may be social media posts or other evidence to also support your findings as to the validity of the period of sick leave.

Issuing a warning for taking unauthorised leave

Assuming the employee can’t provide a valid certificate for the period of leave, however you decide you DON’T want to terminate their employment, we suggest you meet with them immediately upon their return to work. In this meeting you’ll discuss their failure to follow proper procedure, remind them of the correct procedure for next time and explain that they cannot demand leave in the way they had. You should document this discussion in a letter following the meeting, and you may want to issue a formal performance warning to the employee.

Can you terminate based on taking unauthorised leave?

If the employee takes unauthorised leave and does not attend work, you may have grounds to dismiss them. Depending on the various other factors at play in the situation, there may be reasonable grounds for dismissal, however employers should tread carefully here.

It would be wise to seek advice if you are looking at terminating employment based on taking unauthorised leave, as the employee may legally challenge the dismissal. They could potentially lodge an unfair dismissal claim (if they meet the criteria), or they could make an adverse action claim, based on being dismissed for taking leave.

We help employers manage all kinds of complex employee matters, so get in touch with us if you need some advice on managing leave for your team.