Q: A staff member is returning after 4 months of resigning and his original commencement date May 22 is being recognised for continuous service. I have explained to HR that his holiday entitlements were already paid out in his final pay Nov 22 so we cannot use May 22 for his holiday entitlement otherwise he would double dip, so AL entitlement will be from his return date Mar 23.

Question is around sick leave, he had just received his 6 mth sick entitlement in Nov 22 before he left, would we carry this 10 days forward and apply his original sick leave entitlement date at 12 months being Nov 23? or would we just start both entitlement fresh from 27th March return date?

A: As this is nothing to do with the Holidays Act it must be treated as an agreed term.  If you use the previous entitlement dates as the employee was terminated and leave paid out these mean nothing to the Holidays Act and again would be an agreed term. 

To correct this the entitlement dates should be reset to be in line with the Holidays Act requirements.

HR needs to understand you cant just say nothing has changed from a termination pay that was made and reinstate leave etc as there is nothing in the Holidays Act that allows this.