Decision to refuse annual leave request in busy times validated by FWC

Decision to refuse annual leave request in busy times validated by FWC

The Fair Work Commission has upheld the decision of a major retailer to reject an annual leave application from a permanent employee that encompassed the Christmas week, one of the busiest periods each year for retail sales.

The female employee worked for retail giant Harris Scarfe and submitted an annual leave application on 18 August 2022, seeking leave for the period from Thursday, 22 December 2022, to Friday, 30 December 2022.

When lodging the application, the employee was aware that this was a ‘blackout period’ for leave but was seeking time off to celebrate her and her daughter’s birthdays at the Gold Coast, and it was also a convenient time for her husband to take leave from his work.

On 5 September 2022, she received an email from her employer refusing her leave application on the basis that the request could not be honoured because otherwise, the company would need to honour all similar requests through their ‘busiest trading period’ of the year.

On 5 October 2022, the company was contacted by the employee’s union representative, the Shop, Distributive and Allied Employees Association (SDA). The company’s People & Culture Manager contacted the union the following day and advised them that blackout periods were standard practice in the industry and that all requests were denied unless there were extenuating circumstances.

The People & Culture Manager committed to contacting the employee’s store manager to discuss the leave application, which she did, and subsequently advised the union and the employee that the store was unable to operationally accommodate the employee’s request.

In lodging a dispute before Commissioner Tim Lee, the SDA claimed that the employee’s request was reasonable as she had provided sufficient notice, the request effectively only covered four shifts, the employer did not genuinely consider the request, as a large business the employer should have the capacity to cover the shifts, and that if granted, the leave would not cause a detriment to the business.

In reviewing the request, Commissioner Lee referenced section 88 of the Fair Work Act 2009, which provides, “The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave”.

In supporting the leave refusal, the Commissioner gave particular weight to the argument that the company needed as many permanent employees as possible at that particular time. As he noted,

“In particular, assuming that the store would be able to employ additional casual employees for the period, they still require all the existing permanent team to work at least their base hours but preferably more to ensure adequate experience on the sales floor”.

Further, he noted,

“While it is relevant that the Applicant and her daughter’s birthdays fall at that time, that they missed out on a holiday last year, and that the timing is convenient for her husband, these are not of themselves so significant as to tilt the consideration in the Applicant’s favour. I do not accept that the Applicant is unable to take leave at another time, rather that she would prefer not to. While that is understandable, it does not, in all circumstances, mean the refusal was unreasonable”.

Consequently, Commissioner Lee determined that the refusal of the leave request was not unreasonable.

SB v Harris Scarfe Pty Ltd T/A Harris Scarfe (C2022/7473) 16 December 2022

For queries about leave requests, managing workforces, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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