Resigning with Upcoming Booked Annual Leave

pjd24 on 07/12/2024 - 21:23
Last edited 07/12/2024 - 21:46 by 1 other user

Hi y'all, my workplace has a forced shutdown with two weeks of annual leave during the Christmas period. Now, I don't have any special plans for that period, but I am forced to apply for leave during this period of two weeks every year.

I have got a job offer from another company for a job that I really like, so I need to resign from my current job. Now, the dilemma is that what happens to the booked leave? My notice period is 4 weeks, so it will end only AFTER the shutdown of 2 weeks on 6th Jan 2025, but if I am anyway forced to be away on leave during that time, can I join the new company earlier than my 4 weeks notice?

Google tells me, it is legal in Australia to be away on annual leave during notice period and it is legal to even resign while you are on leave, but what is not clear is - if I am anyway losing my paid leave, can't I just cut my losses and start at the new place earlier, so I am at least earning during that time? The new place doesn't have any mandatory leave for the Christmas period.

Keen to hear expert advice from OzBargaineers.

EDIT: Assuming I resign on Monday 9th Dec, 4 weeks end on 6th Jan 2025, exactly the end of shutdown/forced leave period.

Education & Work

Comments

  • Dollar General on 07/12/2024 - 21:26
    +12

    Well if it’s forced annual leave, chances are they will still make you take it and count towards your 4 weeks notice

    • pjd24 on 07/12/2024 - 21:28

      yes, but can I join the new company by allowing the current company to deduct the annual leaves of 2 weeks and letting me go earlier than 4 weeks?

      Edit: I don't see the current company getting any benefit if I am anyway on leave during the last 2 weeks of employment, so why not just let me go and I join the company early.

      • radicalvin on 07/12/2024 - 21:46
        +22

        Why don’t you have an honest conversation with your manager? I have been able to negotiate my exit accordingly several times in the past by having a transparent conversation

        • pjd24 on 10/12/2024 - 01:07

          Thanks. I just did and yeah I will be joining the new firm next week, just before xmas break to meet and greet everyone.

          Obviously, having that conversation was always the part of the plan, but I did not want to rush into that without weighing my options and prepare for the worst case scenario. Like you said, most of the time, it will be ok, but that one time burn is enough to force me to always prepare for the worst. You can never truly know how fast your boss' care for your well-being changes when you resign.

      • Muppet Detector on 12/12/2024 - 20:51

        By paying out your holiday pay, they are not paying out regular pay and then another whole bunch of money called holiday pay on end.

        Now, I don't have any special plans for that period, but I am forced to apply for leave during this period of two weeks every year.

        You have agreed to be there during that period for which you are also being paid.

        By accepting this period of holidays, you have entered a contractual agreement.

        Now, I don't have any special plans for that period, but I am forced to apply for leave during this period of two weeks every year.

        Free to do so once your current contract expires.

        Now, the dilemma is that what happens to the booked leave?

        No dilemma, it's yours to use as you like.

        but if I am anyway forced to be away on leave during that time, can I join the new company earlier than my 4 weeks notice?

        Check with both employers as this will be an insurance issue and I don't think you can have multiple insurances for same thing and get to double dip.

        if I am anyway losing my paid leave, can't I just cut my losses and start at the new place earlier, so I am at least earning during that time?

        You would be double earning.
        Place 1- holiday wages
        Place 2- whatever wages you accrued

    • MS Paint on 08/12/2024 - 00:50
      +22

      Just commenting so when HeWhoKnobs replies later today he's further from the top. FFS

        • JIMB0 on 08/12/2024 - 09:12

          Thanks Mr Jack.

        • smartazz104 on 08/12/2024 - 23:19
          +1

          Someone’s been reading “Satire for Dummies”.

  • GordonD on 07/12/2024 - 21:53
    +11

    You are required to give them a minimum of 4 weeks notice. They don't have to require you to work until that period of notice expires. They can tell you to finish any time from when you hand in your notice..

    The obvious arrangement for you to offer them, and for them to agree to, is that you work the two weeks until the christmas shutdown, and for your employment with them to officially terminate when you would have gone on compulsory annual leave. That leaves you free to start the other job then.

    It is normal for an employer to have to be told if you are being employed by someone else while you are still employed by them. They can say you can't. So if you continued to be employed by your current employer for the 4 weeks notice period you need to balance up whether you want to take the risk of starting another job while you are on leave. You may get away with it if they don't know or if they don't care. But they could decide to be difficult and tell you you can't. That said, it would be difficult and probably not worth their trouble to enforce that.

      • sumyungguy on 08/12/2024 - 00:58
        +6

        OP says: My notice period is 4 weeks

        • altomic on 09/12/2024 - 00:37
          -5

          so if OP wins the lotto he'd just wait patiently for 4 weeks?

    • GordonD on 08/12/2024 - 08:24
      -6

      The easy and obvious measure an employer to take if you took another job while you were still employed by them would be to formally sack you. Which they can still do until your resignation takes effect. So you'd be telling future employers you resigned, and if they checked they'd be told you were sacked. It wouldn't look good. You'd look like a liar.

      • Nickels n Dimes on 08/12/2024 - 21:37
        +1

        An unscrupulous employer might tell you were 'sacked' in any case.

        I used to work for a guy that would go out of his way to spite his former staff, by trying to find out where they now worked and call or email their new employer so he can give them his uninvited opinion about them, which was always incredibly emotional, negative, and filled with fabricated stories of the former staffs' misdeeds. He also gave similarly negative reviews if a potential new company called for a reference, (incredibly people will do that even if you don't give them your current/ex-employers' name as a referee), naturally this always ended with that staff-member not getting an offer.

      • foursaken on 09/12/2024 - 14:19
        +3

        What? I don't understand your logic at all. That leaves the employer wide open for an unfair dismissal claim. No.

  • SmiTTy on 07/12/2024 - 22:07
    +11

    I'd look at your employment contract and see if there are any conditions surrounding this. If you're joining a competitor…id be treading carefully. If not, I'd do it and not mention anything to your current employer (right or wrong… Its highly likely nothing's going to happen).

    Theyll probably let you finish up early if u ask. If you do, you'll miss out on super on any annual leave payout (not to mention annual leave also accrues while you're on annual leave which ull also miss out on albeit will be minor)

    • conan2000 on 08/12/2024 - 17:26

      I'd actually not accept the offer of finishing earlier and still start the new job anyway, assuming OP is salaried, they will get paid for public holidays at both employers as well.

      It's a bit of a risk/reward decision. Don't post anything on LinkedIn or similar that you have started at a new place.

    • LVlahov on 09/12/2024 - 16:32
      +1

      Contract terms that restrict you from joining a competitor are unenforceable in Australia as application of them would be seen as a restriction on trade, i.e. to enforce them the corporation would have to break the law, which is why despite them being in contracts they are never, ever, successfully enforced in a court of law.

      A bit like a washing machine manufacturer telling you in their terms and conditions your washing machine only has a one year warranty. It doesn't. All brand new washing machines in Australia have to be warranted, by law, for a period longer than that. The clause is just inserted to bluff people that do not know better from following the stipulation when it is not in fact legally enforceable.

      • LVlahov on 09/12/2024 - 17:01

        They could prosecute you for abusing your knowledge of their operations, for instance if you left and copied your employers database and then used it to 'win' new clientele for your new employer, if they could prove you had done such a thing, but merely joining a competitor is not illegal.

  • oscargamer on 07/12/2024 - 22:23
    +2

    You have to be employed for the period of your notice. You don't have to be at work. You could be sick, on leave etc….

    • sumyungguy on 07/12/2024 - 22:45
      +4

      This may not be strictly correct. An employer and employee may reach an agreement to end the employment earlier, with the employee being entitled to remuneration for at least their (contracted) minimum notice period. If an employer doesn't want an employee to work their minimum notice period they can simply pay it out. In OP's case a pay out will effectively be made via ARL entitlement. See Resignation - notice period

  • John Kimble on 07/12/2024 - 22:59

    The new company wants you start over Xmas break or are you just hoping they do so you get a cruisy start/free few weeks of pay? 🤔

  • AFOS on 07/12/2024 - 23:08
    +2

    Assuming that you are a permanent employee, you are entitled to paid holidays. So, if you resign before Christmas and start with a new company in the new year you will not get paid for those (3 days).

    Work your notice, get your holiday pay + remainder of entitlements and start fresh. New company is not going to pay your holiday as you will have zero AL accrued. I do not see any reason to rush.

  • altomic on 07/12/2024 - 23:39
    +2

    take your leave, and then tell them you are leaving on X date.

    what are they going to do?

    if they were firing you would they give you 4 weeks notice?

    do what is right for you.

    • askbargain on 08/12/2024 - 01:39
      +1

      They might remove connection on LinkedIn!

      • altomic on 09/12/2024 - 00:38

        makes sense

  • vince088 on 08/12/2024 - 00:15
    +7

    this might also happen:
    https://www.ozbargain.com.au/node/879013

    • cashless on 08/12/2024 - 11:09
      +1

      That will almost certainly happen if OP resigns tomorrow (9th Dec)

  • hasher22 on 08/12/2024 - 01:38
    +5

    This is what's going to happen

    Scenario 1: You resign Monday 9th Dec, the company tell you to eff off on a selected date within the 4 weeks notice without pay witholding, depending on the day they tell you to leave, you leave with whatever remaining AL and whatever entitlements in your last paycheck. Note: Yes, a company can tell you to leave early within your 4 weeks.

    Scenario 2: You resign Monday 9th Dec, they tell you work until 6th Jan 2025 which includes your 2 weeks AL, so technically you work 2 weeks and you leave the company on 6th Jan.

    Scenario 3: You resign Monday 9th Dec, they tell you work until 6th Jan 2025 which includes your 2 weeks AL, you take whatever sick leave within those 2 working weeks

    Your question: what happens to your booked leave….. you'll get it in your last paycheck, no matter the outcome. Whether the company tells you to leave on Monday 9th Dec when you hand in your resignation (agree to no pay withholding, this should be default as you're not quitting on the spot) or 6th Jan 2025. Doesn't matter if the AL is booked, the company can tell you to leave at any point within the 4 weeks if they want, or they let you work until the 6th Jan.

  • larndis on 08/12/2024 - 08:45
    +1

    Is your question whether you can start with your new employer while on AL with your current employer? I don't see why not. Does either agreement expressly forbid it?

    As others have said, your AL will be paid either way, either as leave taken or paid out at the end of employment. So the main difference will be the public holidays. If you end up between employers on the 25/26th you will not get paid for those days.

    • Downvoter on 08/12/2024 - 10:43

      Application for secondary employment may be required

      • army-brat on 09/12/2024 - 11:17
        +1

        unless there is conflict of interest and first job can prove his actions made them suffer a loss, what are they gonna do - fire him if he doesn't obtain their approval first?

        A contract clause is as important as sanctions for breaching it.

        • Downvoter on 09/12/2024 - 14:04

          Subject him to disciplinary action on his record which potential future employers could inquire about.

          • army-brat on 10/12/2024 - 11:04

            @Downvoter: So it's a bad reference and nothing more than that. I'd consider that low risk since they've already got the next job lined up but YMMV

      • LVlahov on 09/12/2024 - 17:07

        There is no need for this. The new place of employment is taking over as the primary place of employment and there will be no enduring second income to rest against it that would require differentiated tax treatment. And if that does arise it would be the second, non-primary place that requires it.

        No one is coming after a person for the minuscule difference in withholding rates from a short overlap between employers notice periods. Any difference is equalised at tax time.

  • JIMB0 on 08/12/2024 - 09:19
    +1

    How much leave have you got. Put in for all of it starting ASAP, then start with the new company ASAP. You'll collect 2 lots of public holiday pay. Hold off on giving your 4 weeks notice until the last minute just incase it doesn't work out with the new company. Bonus points if you can use all your sick leave.

    • LVlahov on 09/12/2024 - 17:12
      +1

      I don't know why someone downvoted this, it is perfectly legal and surely within the remit of "the Ozbargain" way.

      People seem to think there is some validity in restricting who a person can work for, and who they can work concurrently for when no such legal stipulations exist outside of very sensitive roles in defence/intelligence/government employment etc. They are not restrictions an employer can place or penalise other than choosing to discontinue your employment if it is in breach or in conflict with your duties there. In which case they would still need to pay out all appropriate leave and notice periods regardless.

      Employers can prosecute if you misuse private/restricted information acquired during your employment in their business to assist a competitor in such a way that it causes them a definable loss. They can't however police who you work for, and when, again, except for using that as a reason to terminate your employment. It doesn't get them out of the legal obligation to pay all leave and notice periods.

  • Subere on 08/12/2024 - 13:55
    +1

    Cancel your leave, hand in your notice then take a couple sickies during that overlap 😂

    But note you'll have 2 employers for a few days so there will be tax implications

  • R4 on 09/12/2024 - 01:44

    What's a 'y'all'?

    • Hugh G Rection on 09/12/2024 - 07:07
      +1

      must be an american from the south

  • RichB on 09/12/2024 - 06:06
    +1

    Leave is generally best taken as leave and not cashed out for maximum benefit, remember you will be getting paid whilst on AL over the break. Yes you will be paid out if you cash it out, without the benefit of actually taking it. Run the numbers under a few different scenarios, really depends what you want. A break, or a quick start.

  • trapper on 09/12/2024 - 12:27

    You don't get super paid for any annual leave that is not taken as actual leave, ie paid out at the end of employment.

    So is better really to use it before your employment officially ends.

  • AnotherRedLight on 09/12/2024 - 12:49
    +1

    The amount of people ^ that do not understand the question is flabbergasting.

    While you have resigned, you're still employed but on annual leave.

    You can possibly start at the new employer, there is no government regulations against this.
    However you need to read your current employment contract to check for any non compete clauses.

    Id suggest just enjoying your 4 paid weeks off, life is too short for no breaks.

    • hasher22 on 09/12/2024 - 13:58

      OP has 2 weeks AL off and working 2 weeks. If OP had 4 weeks forced AL off, then definitely start at the new job but even with contracts stating about working for competitors, OP doesn't and shouldn't need to disclose that information to the current employer. If I were the OP, if I was going to a competitor, I'll hand in my resignation, shut-up and move on and don't even think about telling anyone else where I am working next.

    • LVlahov on 09/12/2024 - 17:15

      Non compete causes are unenforceable under Australian law. They employer has no means or legal backing to panellise the employee in such a case. They can terminate an employee for working with a competitor whilst they are employed if the two roles conflict and it is stipulated in the contract, but this will not change their obligation to pay out leave and notice periods.

      • AnotherRedLight on 09/12/2024 - 18:40

        Generally yes, apart from high profile cases.

        I'm in a niche industry and there has been lawsuits over staff moving to competitors then trying to poach old customers…. but there's only like 5 companies in Australia you can work for in this field so…

  • joelmuzz on 09/12/2024 - 14:01
    -1

    There is no law to force you to work, unless you have special clauses in contract such as outstanding commisions being forfeit if you just quit.
    And of course it burns bridges.
    To do the right thing just offer to cancel the holidays and work those 2 weeks. Its on them if their forced shutdown wont let you and they wont let you organise your handover WFH.

    • hasher22 on 09/12/2024 - 16:53
      +1

      You're the type of guy HR loves and takes advantage of

      • LVlahov on 09/12/2024 - 17:21

        Why? Sounds like he knows the relative power balance between employee and employer. An employee cannot be forced to work, and cannot be stopped from working with the employer of their choice based on the view of a previous employer. Employers can try to much their employee around, or could be late paying of monies they owe, or seek to shaft the employee some of the entitlements they might otherwise have gotten (commissions, upcoming public holiday pay etc), but they cannot escape their basic legal obligations which include paying out leave and notice periods.

  • Lachy2437 on 09/12/2024 - 19:23
    +1

    Resign first, give them the date, see what the response is. Depending on the industry and employer it is not unusual for them to pay out a notice period to reduce risk of damage to their business by having someone there that doesn't care or has issues with the company. If they don't offer to pay you out talk to them and they are likely to be ok with you finishing before Christmas. Worst case scenario you work for the couple of weeks leave and go back to your old job for a few days to close everything out.

  • Pootie Tang on 09/12/2024 - 22:34
    +2

    Sick certificate for 4 weeks

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