Annual leave: can you make someone work?

Most tribunal decisions on this issue usually deal with the situation of an employee’s recall from annual leave at the employer’s request.

In that circumstance, the employer has no unilateral right to recall an employee from annual leave, although provided the employee is re-credited their annual leave for the period of the recall the employee would not appear to be underpaid. 

Three scenarios 

The National Employment Standard with respect to annual leave only contemplates three scenarios: 

• the employee taking a period of paid annual leave as requested by the employee 
• the “cashing out” of annual leave under a mutual agreement that allows for such an arrangement 
• the payment in lieu of annual leave upon termination of employment. 

Provided the request to the employee was not made under duress by their manager, as both parties are in agreement about working overtime during the employee’s annual leave, there would appear to be little likelihood of litigation unless the arrangement met the objection of the relevant prosecuting authority as a technical breach of the legislation. 

Such a practice is not recommended because legislation expects a period of annual leave to mean an employee’s non-attendance at the workplace.