Everyone needs time off from work. Yet in today’s society, taking time off is becoming increasingly hard. Employees often feel that if they take time off, they will fall behind or be regarded as lacking in dedication to their responsibilities.
This pressures employees to bring their laptop on their vacation, answer work-related emails while on leave, and accept text messages or phone calls from the office. Often this distraction makes it difficult to enjoy some rest and relaxation with friends or family. And while this is an unhealthy habit, it is one that employers often encourage. But can you work while on annual leave and how does it impact on your workplace rights? Keep reading to learn more.
Overview:
- Can you work while on annual leave?
- What is annual leave?
- Situations where you can work while on annual leave
- Working while on personal or medical leave
Can you work while on annual leave?
Whether an employer can direct an employee to remain available to answer emails, respond to emergencies or attend to work-related tasks, is dependent upon the type of leave an employee is taking.
If the employee is on medical leave or on leave due to a work-related injury, it is likely the employer can require the employee to remain available for work-related duties.
However, if an employee is on annual leave (meaning on vacation or holiday), it is much less likely an employer can ask an employee to remain available for work-related needs or incidents.
What is annual leave?
To answer the question, “can you work while on annual leave?”, let’s review it under the laws that pertain to it.
Annual leave is that which an employee is granted by law, by contract, or earns in connection to the number of hours they work per week. In either case, annual leave is usually requested and planned via giving notice to the employer that the employee will not be working during a specified short period of time. The law allows for a full time employee to take four (4) weeks of annual leave per year. The time is extended by an additional week for some shift workers.
Situations where you can work while on annual leave
In the instance of annual leave, it would be highly unlikely that the court would permit an employer to demand that an employee remains available for work during this type of planned holiday. However, employees may choose to remain in contact for varying reasons. These reasons could include;
- Reducing the amount of back up in their email inboxes
- Being available for emergent situations or questions
- To assist in keeping operations running smoothly
- To remain current with the changes in the workplace during their absence
The only exception raised to date would be if an employee’s specific employment contract and award stated that they agreed to be on call while on annual leave. But, short of a specific statement and the employee’s signature agreeing to the same, it is highly unlikely that a court would support an employer interfering with an employee’s annual leave in Australia.
Working while on personal or medical leave
However, the circumstances can be different in the case of an employee taking personal leave or medical leave. Usually, personal leave is short in duration and it causes no issues for the employee or the employer.
But if the circumstances require a longer period of absence for personal issues or an extended medical leave, as in the case of illness or a work-related injury, an employer may have the right to expect an employee to remain available to handle various work situations.
In the recent court case of Swanson v Monash Health [2018] FCCA 538 at [50], the court found that the employer did have the right to expect an employee on workers’ compensation medical leave to be available for work-related needs that could be accomplished remotely.
The court pointed to several factors that allow the employer to maintain these expectations, including;
- The employer’s expectations remain reasonable.
- The employee is unfit for work due to a work-related injury (please note, the court did not extend this answer to employees who are absent from work for longer than ordinary illnesses that are not work-related).
- If the medical excuses lack details pertaining to the illness and its debilitating qualities.
- If the leave has been for an extended period of time.
- And, in the case of a workers’ compensation injury, the employee has not been willing to submit to an Independent Medical Assessment.
As such, the court determined that the employee remained under her work contract and hence could be required to maintain and complete the reasonable duties assigned to her by her employer.
It is always important to identify the type of leave an employee is engaging in, because the answer to “can you work while on annual leave?” will depend on the categorisation of the employee’s absence.
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In the event that you have questions regarding this issue please contact the employment lawyers at Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780. We can also answer questions about unfair dismissal, modern awards and enterprise agreements and entitlements to annual leave.
Here at Owen Hodge Lawyers, we are always striving to deliver the legal advice and guidance you need no matter your issue. We specialise in a range of law matters, and have a blog that offers in-depth and comprehensive articles. See our latest about a sample letter requesting that an employee attend a medical examination, bailment, and read more articles on the Owen Hodge Lawyers blog today.
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