Q: We are looking to get some clarity around a person that has been terminated and the result has ended up with a negative termination balance.

If a person terminates and they haven’t been in the business for 12 months, they have taken only accrued leave as that is what was available.

When we process the termination, the 8% Gross has calculated at less than the leave taken, what do we do with the overpayment of the holidays – Can we hold it?

Or do we pay them only the hours they have worked and 8% of those hours worked or create an overpayment and ask them to pay this back?

Are we meeting the act?

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A: No, they took leave in advance of entitlement (Section 22), so this comes from the entitlement field, not the 8% accrual field.

Entitlement provided in advance can be deducted from the 8% on termination. If the 8% does not cover the entitlement provided in advance, and you have a clause in the employment agreement stating that any amount owed on termination can be deducted with the employee’s permission, you must communicate with the employee about your intention to deduct. The employee has the right to withdraw their consent, in which case you cannot deduct (Wages Protection Act, Section 5).

The issue here is that the employee was allowed to take entitlement in advance that exceeded what was accrued in the 8%. Leave provided in advance should be matched to what has accrued in the 8% to prevent this issue.

This has nothing to do with hours; it relates to gross earnings for the assessed period.