Q: We have an employee who went on parental leave from 01/10/21 to 01/04/22 (6 months) and because she is not entitled to 1 year parental leave she was put on leave without pay from 04/04/22 to 30/09/22 ( so total of 1 year off). Then she extended her leave without pay from 03/10/22 to 13/01/23.
Now she resigned, should her last day be the day before she went on parental leave 30/09/21 or the day after her 1 year parental leave & LWP i.e. 03/10/22?
A: What was the leave without pay agreed as? Counted as continuous employment or a break in service (did they keep accruing leave).
Q: It did not state on the letter if the leave without pay or extended LWP is counted as continuous employment or break in service. When we put an employee on leave without pay, they will accrue annual leave for the first 7 days only and then it will suspend. So she accrued annual leave while on parental leave (6 months), then accrued annual leave again for the first 7 days while on LWP.
It was decided that her end date would be 03/10/22 when her first LWP ended. It’s like she went on leave for 1 year (6 months parental leave & 6 months LWP because she wasn’t entitled to 1 year parental leave) and suppose to come back but instead of coming back she extended her LWP until 13/01/23.
If we put her end date on 03/10/22, then we will need to pay out all her annual leave accrued while on parental leave? So I’m clarifying if this is correct.
A: This is messy, they have not returned to work but under Section 46 (a) it talks about “without good cause”, well they did not return to work because it had been agreed they would now have leave without pay. That would suggest it was good cause as it was discussed and agreed. This is more about when they just don’t come back.
| 46 Failure to return to work
If an employee who takes up parental leave and whose position is kept open by the employer— (a) fails, without good cause, to return to work at the end of that period of parental leave; or (b) informs the employer, before the end of that period of parental leave, that the employee has decided not to return to work at the end of the period of parental leave,— the employee’s employment shall, subject to any agreement between the employer and the employee, be deemed to have been at an end as from the day on which the period of parental leave began. |
Based on giving them two extensions of leave without pay I believe that rules out using section 46, so they will get the 4 weeks paid out on termination. But that annual leave entitlement (earned while on parental and in the 12 months on their return) can only use AWE (section 42) and that would be zero as they have not earned anything in the last 52 weeks.