Unjustified dismissal following taking annual leave…

The Employment Relations Authority has upheld a claim for unjustified dismissal after an employee claimed that she was dismissed for taking annual leave which had been agreed.

The employee had two periods of leave approved in advance by her employer, one week before Christmas and one week in February.  A couple of days before the Christmas leave was due to commence the employer asked her not to take the leave due to the workplace being very busy.  She agreed to cancel that leave, but on the basis that she could continue to take the leave in February and would be able to take extra leave at Easter.

However, when the February leave came around the employer again asked her not to take the leave due to the workplace being busy.  She refused and said that she had already made bookings for leave and took the leave.  The employer then responded by saying that she will not be able to take leave at Easter.  After a dispute about the ability of the employer to cancel pre-approved leave the employer then gave her notice of termination.  The ERA held that the termination was unjustified as she had no opportunity to respond to the alleged poor performance which was given as the reason for her dismissal.  Instead the ERA found that this was a direct result of the employee taking pre-approved leave and that such action was unlawful.

The employee was awarded $12,500 compensation for hurt and humiliation suffered. 

Alan Knowsley

Employment Lawyer
Wellington