In Ms Sandra Barresi v Harris Scarfe Pty Ltd T/A Harris Scarfe [2022] FWC 3293, the Fair Work Commission has upheld an employer’s decision to reject an employee’s application to take leave during the company’s busiest trading period. 

The Legislation.

Section 88 of the Fair Work Act requires employers to not unreasonably refuse annual leave requests.

What happened?  

Ms Sandra Barresi (the employee) requested leave for a Gold Coast holiday from 22 to 30 December to celebrate her and her daughters birthdays. She told the company it was the only time that her husband could get off work.  Her employer, Harris Scarfe Pty Ltd, had a “blackout period”  for leave as it was the company’s busiest trading period for the year.

Upon escalation, the company’s people manager explained that that the draft roster for the Christmas/New Year period required employees to work almost double their normal hours, and that, even if the company hired more casuals, it needed experienced workers on the sales floor.

The SDA (union) applied to the Commission on the worker’s behalf to resolve the leave issue under the dispute settlement procedure in the company’s agreement.

The Decision  

The matter was unable to reach a resolution at conciliation and  so it proceeded to arbitration before Commissioner Tim Lee.  During arbitration, Harris Scarfe explained its business reasons for declining the request, including that:  

  • it hired 56 Christmas casuals to work on the registers at the Gepps Cross store, where the worker is employed; 
  • The normal roster at Gepps Cross involves 243 “base” hours a week but the planned roster for the Christmas and New Year period increases to 400 hours a week; 
  • At the time of the application to the Commission, they didn’t have enough employees to cover the roster over the Christmas period and argued that even if it  hired more casuals, it still needed their permanent employees to work their existing hours and preferably some additional hours.

Commissioner Lee upheld Harris Scarfe’s refusal and stated that  “a decision to refuse a request for annual leave which is based upon genuine, sound business reasons would not usually be held to be unreasonable”.

Commissioner Lee accepted the employer’s argument that it needed experienced employees to work their base hours on the sales floor, while the casuals worked on the registers.

He found the worker’s reasons for taking leave not “significant” enough to make the employer’s refusal unreasonable.

Learnings for Employers 

Key learnings to be taken by employers from this include:

  • Ensure your Leave policies are clear on any guidelines and limitations on taking of leave and reasons for this
  • Always consider and discuss any leave applications with employees even where they fall outside of the policy guidelines (showing a willingness to consider and negotiate is viewed favourably by Fair Work)
  • Capture any discussions and decisions in writing in case they are challenged in future!

If you need assistance in Leave or any HR policies in your workplace, please contact our team of consultants for assistance.

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