Everyone needs time off from the duties of their work. Yet in today’s society, taking time off is becoming increasingly harder. Employee’s often feel that if they take time off, they will fall behind or be regarded as lacking in dedication to their responsibilities. This leads many employees to take vacations that encompass bringing along their laptop, answering emails, accepting text messages and phoning into the office. Often this distraction makes it difficult to enjoy some rest and relaxation with friends or family. And while this is an unhealthy habit, it is one that employers often encourage.
Whether an employer can direct an employee, who is absent from work, to remain available and in contact for emergencies or for continuing to review and respond to email, or to attend to other work-related tasks that can be performed remotely, is dependent upon the type of leave an employee is taking. If the employee is on medical leave, or on leave due to a work related injury, it is more likely the employer can require the employee to remain available for work related duties. However, if an employee is on annual leave, synonymous with being on vacation or holiday, it is much less likely an employer can require an employee to remain available for work related needs or incidents.
Initially, let’s review the question under the laws that pertain to annual leave. Annual leave is that which an employee is granted by law, by contract, or earns in connection to the number of hours they work per week. In either case, annual leave is usually requested and planned via giving notice to the employer that the employee will not be working during a specified short period of time. The law allows for an employee to take four (4) weeks of annual leave per year. The time is extended by an additional week for some shift workers.
In the instance of annual leave, it would be highly unlikely that the court would permit and employer to demand an employee remain available for work during this type of planned holiday. However, employees may choose to remain in contact for varying reasons. These reasons could include;
- Reducing the amount of back up in their email inboxes
- Being available for emergent situations or questions
- To assist in keeping operations running smoothly
- To remain current with the changes in the workplace during their absence
The only exception raised to date would be if an employee’s specific contract stated that they agreed to be available while on annual leave. But, short of a specific statement and the employee’s signature acquiescing to the same, it is highly unlikely that a court would support an employer interfering with an employee’s annual leave.
However, the circumstances can be different in the case of an employee taking personal leave or medical leave. Usually personal leave is short in duration and causes no issues for the employee or the employer. But if the circumstances require a longer period of absence for personal issues, or an extended medical leave, as in the case of illness or a work related injury, an employer may have the right to expect an employee to remain available to handle various work situations.
In the recent court case of Swanson v Monash Health [2018] FCCA 538 at [50], the court found that the employer did have the right to expect an employee on workers’ compensation medical leave to be available for work related needs that could be accomplished remotely.
The court pointed to several factors that allowed the employer to maintain these expectations, including;
- The employer’s expectations remain reasonable
- The employee is unfit for work due to a work related injury (please note the court did not extend this answer to employees who are absent from work for longer than ordinary illnesses that are not work-related).
- If the medical excuses lack details pertaining to the illness and its debilitating qualities
- If the leave has been for an extended period of time
- And, in the case of a workers’ compensation injury, the employee has not been willing to submit to an Independent Medical Assessment.
As such the court determined that the employee remained under her work contract and hence could be required to maintain and complete the reasonable duties assigned to her by her employer.
It is always important to initially identify the type of leave an employee is engaging in, because the answer to whether an employer can expect or require an employee to work while absent from their place of employment, will depend upon the categorisation of the employee’s absence.