The South Australian Industrial Relations Court has ordered an employer to pay an employee (who had been dismissed) for a period of annual leave which coincided with the notice of termination period.

The employee was made redundant and was given the required notice of termination.  This notice period coincided with a period when the employee was taking annual leave.  The employee made a claim for annual leave accrued as at the date of the notice of termination.  In addition to disputing this entitlement, the employer sought to deny the employee’s claim on the basis that the employee had been offered and accepted an additional week’s work following the end of the notice period.  The employer argued that the employee had consented to a withdrawal of the notice of termination by accepting this additional work.

The Court held that notice of termination cannot run concurrently with approved annual leave because to do so would deprive the employee of the right to paid leave.  The Court also held that the offer and acceptance of a further week’s work could not be viewed as a consent to withdrawal of the notice of termination.

Wanders v Richards Mining Services Pty Ltd [2012] SAIRC 46 (4 October 2012)