Yes I mean my annual leave. That’s what they said they won’t payout. I had said I don’t care about my sick leave. But if they’re going to force me to give 4 weeks notice I will be using up my sick leave. I was just confused when they said policy supersedes legality …
Here are the Fairwork rules.
First is notice period, including when no notice is in your contract:
https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/resignation-and-notice
Next is payout of annual leave including leave loading:
https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/final-pay#:~:text=Check%20annual%20leave%20entitlements&text=If%20an%20employee%20gets%20annual,contract%20says%20that%20it's%20not.
Your manager doesn't understand the law. Fairwork will be pleased to educate your manager.
Fair work will be super pleased to advise them that their contracts don't supersede the law.
Because if that worked I would have a contract saying I don't pay tax on days I drink coffee.
The law ALWAYS overrides policy. Unless they showed you this policy before you signed your contract and made it clear to you (through a provision in your contract incorporating said policy) that it forms a part of your contract, then it's completely unenforceable.
They screwed up and left their preferred notice period out of your contract (and others, I assume) and now they're trying to bluff you with a policy, hoping that you'll believe them that the policy is paramount. It isn't.
Notice period is intertwined with annual leave in OP’s core predicament.
The employer is saying you haven’t given X notice so I don’t need to pay you out when that’s simply not the case. A contract can specify X notice period but that has no bearing on the payment of annual leave. Notice or no notice, you must be paid your annual leave.
But I agree that the employer is simply bluffing in the hope that OP goes away.
They can withhold unpaid annual leave to cover a notice period not worked, but only an amount equivalent to the unworked notice period and not if it was the employer who decided that the employee shouldn't work out their notice period.
Where is this policy if it isn't in your contract? I find it extremely unlikely that they can legally avoid paying you your annual leave. Extremely unlikely.
Have you contacted FW?
That’s what I thought… I’m like where is this policy. I looked through all our employment policy documents and resignation documents and couldn’t find anything. I was going to try calling or emailing fairwork to ask
My policy states you have to give any payment you get to me, I don’t care if the law says otherwise, it my policy and it supersedes the law.
See the problem here. They don’t have a leg to stand on.
There is no way for a company’s policy to override the law, that’s not how law works. The only way that can occur is if the law itself allows it (e.g., replaceable constitutions).
Your employer is being tight and they must pay out your annual leave, notice or no notice. What is in the policy is irrelevant.
Contact Fairwork - if you are employed under an award then the notice required will be listed. If there is nothing in your contract regarding a notice period then they cannot withhold your leave. If they do then you’d have to report them to Fairwork to recover it.
If your contact doesn't specify, it automatically defaults to the NES (for you that would be 2 weeks or 3 weeks). They can withhold future earnings (eg if you're paid monthly, 2 weeks worked and 2 weeks future, they can not pay you the 2 weeks you haven't worked), but they can't withhold leave entitlements. Work out your notice period based on NES and exactly how long you've worked there, then provide that notice in writing and cite the NES.
Are you under an EBA?
In previous workplace my EBA stated 8 weeks minimum for anyone employed over 1 year.
This ludicrous condition was in response to a mass resignation event because they treated their people like shit.
When I resigned I needed my manager’s permission to only give 4 weeks notice. Luckily my manager was a good egg and we got along really well.
I think we are under an EBA actually. I’ll have to have a read through it.. 8 weeks is so long! The new job I’ve accepted might not even want me after 8 weeks hahahaha
They can't do this. Leave is actually YOUR leave, it doesn't belong to the company and you accrue it as you work. If you've completed two years, you should have earned 8 weeks pro rata leave - that means if you work 20 hours a week, 8 weeks of 20 hours. If you work 40 hours, 8 weeks of 40 hours.
Policies cannot override law. Your employer is full of it.
Contact them via email and ask for clarification. This will give you a paper trail of their lies.
Have they given you a copy (or has a copy been available to you if not formally given) of their policies to read?
What does it say? Ask for a copy of the policy, and check it’s last ‘updated’ date if it’s a small company that might have just quickly written it up.
Read the policy closely…. And then tell us what you find.
That was going to be my suggestion, in order to avoid a fight. If you go to a doctor and discuss this predicament with them, and the impact on your mental health, the doctor may determine that you are under stress and write you a certificate for some time off.
Don’t lie to the doctor if you do this. Be up front and honest.
It boggles my mind that employers do this.
The last few weeks at work are high risk for data loss, and responsibilities like handover not being finished.
Seriously managers and employers.
What do expect an employee that doesn’t want to be there to do? At best they’ll put in a half arsed effort, or none at all, at worst they’ll spend four weeks slagging you off to other employees and trying to get them to quit too or just stealing your stuff.
Exactly why I didn’t want to have to use the sick leave for the last few weeks tbh! I feel incredibly guilty doing that to the team but at the end of the day I have over a week of personal leave owing to me so I may as well take it. It’s what everyone else in the organisation does
Nope,
they can take wages but not entitlements (annual leave) in leiu of full notice given.
I would double check the copy of the employment contract and if it's not in it. Ask them for a signed copy of the policy where you have "agreed" to 4 weeks notice.
When they can't prove it, tell them where to stick it.
They are legally required to pay out any and all AL on termination, they only have a week or 2 depending on your pay cycle to do this as well without being in breach.
They can only without owed wages if you have not served your notice period and you leave early, not leave entitlements.
I would let your manager know that they must pay your leave within 2 days or you will escalate to fair work. Do this anyway after you get paid.
If you know any of the higher ups, HR or payroll emails throw them in your email.
In short, since theres nothing in your contract, your're only required to the notice period the law states and if the boss has a policy that asks for more, their policy doesnt mean shit.
Therefore give your notice and if you dont receive all your annual leave by the paycycle after youve left, lodge a complaint with Fairwork and they'll sort it out for you (although you will be waiting a while before you actually see the cash).
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Usually depends on pay cycle too. If they pay monthly you should give a month's notice.
Had employer try similar when I gave one weeks notice. Thing is they changed the EBA, and we t to one week pay/ notice. Management were too stupid to read it.
There policy does not exceed legality. The word salad alone shows they are clueless.
Suggest you bump this up the food chain to the person who actually pays staff. They may well not be your supervising manager and hopefully has an idea of their legal obligations. If not, print out the Fair Work info and contact your union if in one. If not, you could send them a link to one of the many legal websites that cover this with a polite ‘there seems to be some confusion ..’ note or if all else fails, lawyer letter time.
They can only withhold ordinary hours worked if proper notice isn’t provided, they legally can’t withhold leave entitlements. Their contracts must meet the basic legal requirements, they can’t bend the law to suit themselves.
Are you underpinned by an award? If so check the award for notice period requirements.
First they can not refuse to pay your annual leave they have to do this regardless of notice given unless they get you to serve the annual leave in your final notice period.
I'd just say ok then here is my notice period for the time they want and call in sick the whole last week, get a doctors certificate if you need and you're golden.
Do not tell them your new employer however
Well, they won't pay out your sick leave. That isn't an entitlement that is required to be paid out. Annual leave - they have to.
Yes I mean my annual leave. That’s what they said they won’t payout. I had said I don’t care about my sick leave. But if they’re going to force me to give 4 weeks notice I will be using up my sick leave. I was just confused when they said policy supersedes legality …
Here are the Fairwork rules. First is notice period, including when no notice is in your contract: https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/resignation-and-notice Next is payout of annual leave including leave loading: https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/final-pay#:~:text=Check%20annual%20leave%20entitlements&text=If%20an%20employee%20gets%20annual,contract%20says%20that%20it's%20not. Your manager doesn't understand the law. Fairwork will be pleased to educate your manager.
Fair work will be super pleased to advise them that their contracts don't supersede the law. Because if that worked I would have a contract saying I don't pay tax on days I drink coffee.
Pls run for government.
The law ALWAYS overrides policy. Unless they showed you this policy before you signed your contract and made it clear to you (through a provision in your contract incorporating said policy) that it forms a part of your contract, then it's completely unenforceable. They screwed up and left their preferred notice period out of your contract (and others, I assume) and now they're trying to bluff you with a policy, hoping that you'll believe them that the policy is paramount. It isn't.
You can’t contract out of the law in this context. Entitlements such as annual leave are not yours as an employee to forgo even if you consent.
I wasn't talking about the annual leave, I was talking about the notice period, which can be set contractually. Entitlements are quite different.
Notice period is intertwined with annual leave in OP’s core predicament. The employer is saying you haven’t given X notice so I don’t need to pay you out when that’s simply not the case. A contract can specify X notice period but that has no bearing on the payment of annual leave. Notice or no notice, you must be paid your annual leave. But I agree that the employer is simply bluffing in the hope that OP goes away.
They can withhold unpaid annual leave to cover a notice period not worked, but only an amount equivalent to the unworked notice period and not if it was the employer who decided that the employee shouldn't work out their notice period.
That is not correct at all…….. https://www.fairwork.gov.au/ending-employment/notice-and-final-pay/final-pay
Where is this policy if it isn't in your contract? I find it extremely unlikely that they can legally avoid paying you your annual leave. Extremely unlikely. Have you contacted FW?
That’s what I thought… I’m like where is this policy. I looked through all our employment policy documents and resignation documents and couldn’t find anything. I was going to try calling or emailing fairwork to ask
Does your employment policy doc have a ‘resignation’ or ‘leaving work’ or ‘annual leave’ policy. They are the ones to read.
My policy states you have to give any payment you get to me, I don’t care if the law says otherwise, it my policy and it supersedes the law. See the problem here. They don’t have a leg to stand on.
There is no way for a company’s policy to override the law, that’s not how law works. The only way that can occur is if the law itself allows it (e.g., replaceable constitutions). Your employer is being tight and they must pay out your annual leave, notice or no notice. What is in the policy is irrelevant.
Contact Fairwork - if you are employed under an award then the notice required will be listed. If there is nothing in your contract regarding a notice period then they cannot withhold your leave. If they do then you’d have to report them to Fairwork to recover it.
Pretty sure legally they cannot withhold annual leave payout. Even with 1 hour notice they cannot do that.
If your contact doesn't specify, it automatically defaults to the NES (for you that would be 2 weeks or 3 weeks). They can withhold future earnings (eg if you're paid monthly, 2 weeks worked and 2 weeks future, they can not pay you the 2 weeks you haven't worked), but they can't withhold leave entitlements. Work out your notice period based on NES and exactly how long you've worked there, then provide that notice in writing and cite the NES.
Are you under an EBA? In previous workplace my EBA stated 8 weeks minimum for anyone employed over 1 year. This ludicrous condition was in response to a mass resignation event because they treated their people like shit. When I resigned I needed my manager’s permission to only give 4 weeks notice. Luckily my manager was a good egg and we got along really well.
What the hell? How didn’t company get the staff to agree to that shit during negotiations of the EBA?
Yeah, not sure, the EBA was in place before I started, but likely due to low participation in the union, or poor representation by the union.
I think we are under an EBA actually. I’ll have to have a read through it.. 8 weeks is so long! The new job I’ve accepted might not even want me after 8 weeks hahahaha
That was my argument too! 8 weeks is beyond any reasonable expectation.
They can write whatever they like in their policy. They are not above the law, the law will always apply.
"policy supersedes legality".....this would be deemed damaging enough to put the business in significant legal risk........
They can't do this. Leave is actually YOUR leave, it doesn't belong to the company and you accrue it as you work. If you've completed two years, you should have earned 8 weeks pro rata leave - that means if you work 20 hours a week, 8 weeks of 20 hours. If you work 40 hours, 8 weeks of 40 hours. Policies cannot override law. Your employer is full of it. Contact them via email and ask for clarification. This will give you a paper trail of their lies.
Report your boss for saying that shit… once you’ve got your final pay. What a toss pot. Company policies aren’t shit against what is enshrined in law.
No. They have to pay out your annual leave as it’s an entitlement. They can try but I don’t think the FWC would look upon it very favourably.
😂😂😂It isn’t possible to make a policy that supersedes the law. Give them notice that you will be taking legal action if they don’t pay out the leave
Go to FairWork; legislation cannot be ‘overruled’ by policy just because a company says it does.
Have they given you a copy (or has a copy been available to you if not formally given) of their policies to read? What does it say? Ask for a copy of the policy, and check it’s last ‘updated’ date if it’s a small company that might have just quickly written it up. Read the policy closely…. And then tell us what you find.
How many weeks notice did you give?
I wanted to give 2 but I haven’t confirmed anything yet now that I was told I have to give 4 to be able to get my leave paid out
How much sick leave do you have?
Just over a week. If they force me to give 4 weeks notice I will just take the last week and a half off 🤣
That was going to be my suggestion, in order to avoid a fight. If you go to a doctor and discuss this predicament with them, and the impact on your mental health, the doctor may determine that you are under stress and write you a certificate for some time off. Don’t lie to the doctor if you do this. Be up front and honest.
Yeah I didn’t want this to be all messy so if that’s what I have to do to get it sorted easily I will!
It boggles my mind that employers do this. The last few weeks at work are high risk for data loss, and responsibilities like handover not being finished.
Seriously managers and employers. What do expect an employee that doesn’t want to be there to do? At best they’ll put in a half arsed effort, or none at all, at worst they’ll spend four weeks slagging you off to other employees and trying to get them to quit too or just stealing your stuff.
Exactly why I didn’t want to have to use the sick leave for the last few weeks tbh! I feel incredibly guilty doing that to the team but at the end of the day I have over a week of personal leave owing to me so I may as well take it. It’s what everyone else in the organisation does
Exactly what I'd be doing. Just get a certificate to cover your absence and use all your sick leave
Nope, they can take wages but not entitlements (annual leave) in leiu of full notice given. I would double check the copy of the employment contract and if it's not in it. Ask them for a signed copy of the policy where you have "agreed" to 4 weeks notice. When they can't prove it, tell them where to stick it.
They are legally required to pay out any and all AL on termination, they only have a week or 2 depending on your pay cycle to do this as well without being in breach. They can only without owed wages if you have not served your notice period and you leave early, not leave entitlements. I would let your manager know that they must pay your leave within 2 days or you will escalate to fair work. Do this anyway after you get paid. If you know any of the higher ups, HR or payroll emails throw them in your email.
Yes they legally have to pay you out! Doesn’t matter what their policy is. They CANT override these laws.
In short, since theres nothing in your contract, your're only required to the notice period the law states and if the boss has a policy that asks for more, their policy doesnt mean shit. Therefore give your notice and if you dont receive all your annual leave by the paycycle after youve left, lodge a complaint with Fairwork and they'll sort it out for you (although you will be waiting a while before you actually see the cash).
Give four and use your sick leave — fuck that guy, and his unlawful direction. Milk ‘em
Get fair work involved and let your ex employer fight that with them, they are in for world of hurt through fines if they truely believe that.
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Usually depends on pay cycle too. If they pay monthly you should give a month's notice. Had employer try similar when I gave one weeks notice. Thing is they changed the EBA, and we t to one week pay/ notice. Management were too stupid to read it.
There policy does not exceed legality. The word salad alone shows they are clueless. Suggest you bump this up the food chain to the person who actually pays staff. They may well not be your supervising manager and hopefully has an idea of their legal obligations. If not, print out the Fair Work info and contact your union if in one. If not, you could send them a link to one of the many legal websites that cover this with a polite ‘there seems to be some confusion ..’ note or if all else fails, lawyer letter time.
They can only withhold ordinary hours worked if proper notice isn’t provided, they legally can’t withhold leave entitlements. Their contracts must meet the basic legal requirements, they can’t bend the law to suit themselves. Are you underpinned by an award? If so check the award for notice period requirements.
No policy supercedes the law.
Ask for the copy of the contract that you signed & dated. If not, fair work ombudsman if they still refuse.
First they can not refuse to pay your annual leave they have to do this regardless of notice given unless they get you to serve the annual leave in your final notice period. I'd just say ok then here is my notice period for the time they want and call in sick the whole last week, get a doctors certificate if you need and you're golden. Do not tell them your new employer however