Terminating an employee close to Xmas: legal considerations

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Unpleasant as it may be so close to Christmas, you may find yourself needing to deliver the chop to employees, whether due to redundancy or performance considerations.

Employment lawyers at Norton Rose said in a report that employers must be mindful that a notice period cannot run concurrently with approved leave because to do so is to deprive the employee of their right to paid leave.

The decision in Wanders v Richards Mining Services Pty Ltd [2012] SAIRC 46, confirmed that an employer cannot avoid liability for approved leave that coincides with a notice period. In that case, an employee was dismissed as a result of redundancy in December last year, and the employer gave him four weeks’ notice. However, the notice period coincided with the employer's forced shutdown period and the Christmas/New Year public holidays.

The South Australian Industrial Relations Court found that the employee had been deprived of his annual leave entitlement as it had been incorporated into the notice period. As a result, the employer was ordered to pay the employee for the period of annual leave (64 hours) which coincided with the notice of termination period.

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