KEY POINTS:
These might be obvious questions to a Kiwi, but I used to work overseas and I've just resigned from my first job in New Zealand. Overseas I didn't have to give any notice at all - legally you can just walk out the door if you want (although
it's polite to give two weeks notice).
I know I'm definitely a bit in the dark about what was required of me after I resigned from my job here. Apparently my contract says I have to work for four more weeks. I had four weeks of leave saved up (at least) and I needed to use two of them for a pre-booked holiday. I read the contract to mean I actually needed to be at work for four weeks, so I ended up staying for six weeks and taking two weeks leave.
Someone's told me that was incorrect and I could have just worked for two weeks and taken two leave.
Could I have taken all four weeks leave and started the new job within that time, or is there some legal thing about being on vacation from one job while working for another? Also, do I get paid for my left-over leave when I go? Is it possible my employer could restrict it or make it painful for me?
In some jurisdictions, employment is 'at will'. This means employees can resign (or be dismissed) at any time for any reason.
There is no requirement for them to give (or receive) any notice at all. But in New Zealand, employees who resign must give the period of notice required in their employment agreement, or else 'reasonable notice'. There are also rules about when you can take annual leave, what you can do during your notice period and payment for annual leave when your employment ends.
Your employment agreement required you to give four weeks notice. Any annual leave taken during your notice period counts as part of your notice period. So your two weeks annual leave counted as part of your notice period.
You only needed to give four weeks notice in total, not six. But this does not mean you can resign and then tell your employer you are leaving immediately because you have enough annual leave owing to cover your notice period.
In your case, your employer had already agreed for you to take some leave. But the situation is different if you have no pre-booked leave. Then your employer might be entitled to refuse a request for annual leave during your notice period. For example, because it needs you at work during that time to hand over to another employee, finish up things you are working on etc.
If your employer does agree you can leave the workplace straight away, this does not necessarily mean you can start working for your new employer immediately. There are three possibilities for leaving the workplace straight away:
* You and your employer agree to waive your notice period. Your employment ends immediately and you are paid out for any unused annual leave you have earned. In this case, your employment has ended so you can start work for your new employer whenever you like.
* Your employer agrees to let you take annual leave for the remainder of your notice period. If this occurs without any agreement for employment to end immediately/notice to be waived, then you remain employed throughout your notice period.
Employees on annual leave are still employed. They cannot work for someone else during their annual leave (unless their employer agrees).
So in this case, you could leave the workplace immediately but you could not take up your new employment until the end of your notice period.
* You have a 'garden leave' clause in your employment agreement. This is a clause saying the employer can require you to stay away from work during your notice period.
If you have a clause like this and your employer uses it, then you must leave work straight away, but your normal salary must continue during the 'gardening leave' and your unused annual leave must be paid out when the notice period ends.
You remain employed during 'gardening leave' so you cannot go and work for someone else until the notice period ends. As to your entitlement to any 'left over' leave when your employment ends, this must be paid out.
The employer is obliged to do this regardless of the reason for your employer ending.
The payment cannot be restricted or made difficult for you. There are rules about how payment for unused annual leave must be calculated when employment ends.
If your employer refuses to pay you for unused annual leave when your employment ends you can take action. As a first step, you could contact the Employment Relations Service Helpline or an employment law specialist for assistance.
Now that you have already given six weeks notice, you will have to work for that period. But when the six week period ends you are entitled to be paid for any unused annual leave and start working for your new employer.
