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I have recently resigned from my job and the company decided to put me on a garden leave. No problem with that.

However after a few days they realised that they may do with a handover of some of my work - surprise surprise - and began to retract on the garden leave decision. Can they actually do that and to what extent?

I know I'm still technically an employee but they told me to bugger off and enjoy the leave, so I started planning my free time, booked some travel, etc. Now I would have to cancel my plans, cancel the travel, probably pay cancellation fees, etc. That doesn't seem fair. And if I don't agree to that, or not to the extent they want, then what can they do?

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7 Answers 7

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The likely answer to "can they do this" depends on exactly what you were told when you were sent on garden leave. If they formally told you that you would not need to come in again then they can't really change their minds. A lawyer is going to tell you more, but you almost certainly don't want to get lawyers involved. On the other hand they also don't want to get involved in a legal battle over this. If they had wanted you to do some handover work then they should have told you this up front. Point out that this problem is because of their mistake.

Step 1 is to tell the company what you said in the question - that you were told you would not need to do any further work and to take the rest of the time off. You therefore made plans based on what you were told, and that changing those plans will cost you money.

However since it does nobody any good to turn this into a legal fight, and since you want to maintain a high standard of professionalism, what I recommend you do is negotiate about when and how much you have to come to the office. Get them to estimate how much time they need from you for handover, and arrange to do that handover at a time when you are not travelling. You may have to cancel some other plans, but this time off is a bonus so you shouldn't be too upset that it's taken away. If it comes to hardball I would be very surprised if the company took any action against you for refusing.

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    With that being said, I agree with the core argument: time to negotiate. There may be some flexibility on times/locations for the hand-over. It may be possible to get compensation for any cancellation. Everything's possible, so it's best to get there with an open mind. Sep 5, 2023 at 15:13
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    @MatthieuM. In a civilized country the company can't give you shorter notice than the employee, and since the employee is already working through their notice any firing can't take effect until after the end of the notice period. In the US they could have fired you the moment you gave your notice if they wanted. Sep 5, 2023 at 16:18
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    @DJClayworth that math changes a bit when you refuse to work, one of the easiest cases to get someone fired on the spot for, no notice or paying off remainder of contract needed.
    – Aida Paul
    Sep 5, 2023 at 22:01
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    @DJClayworth: In normal circumstances, I agree with you. If an employee refuses to work while on payroll, however, circumstances are no longer normal. Sep 6, 2023 at 7:08
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    Always gotta upvote the "your boss is a human being, you're both adults, just go talk to them and work something out" solution. They told you to go on vacation, so you did -- reasonable. You're on payroll and they want you to do work -- reasonable. It's their fault (sort of), but they're still in a spot, and you still owe them (because they're paying you). Just talk it out. Sep 6, 2023 at 13:49
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However after few days they realized that they may do with a handover of some of my work - surprise surprise - and begun to retract on the garden leave decision. Can they actually do that and to what extent?

I know I'm still technically an employee but [...]

Yup, you are still an employee until your last day of if they let you go without serving your full notice (don't know if that is possible in Australia but it is in many other parts).

As I mentioned in comments, a "Garden Leave" is not the same as PTO/vacations or no-work period. It is precisely for things like handover of responsibilities, projects, transitions etc..

In other words, you shouldn't have booked flights and planned vacations/trips if you are still employed and are on a period of transition (return your equipment, Laptop, hand over projects to coworkers, etc.).

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That doesn't seem fair. And if I don't agree to that, or not to the extent they want, then what can they do?

This is really your key question, so I'll address the two points you raised.

doesn't seem fair

It's not fair, correct, but it's not WRONG, nor ILLEGAL. Employers can change their minds. Contractually, you're an employee, so it's up to them what you do with your time during your employment. They told you to do nothing and go on vacation? Sure, but they now changed their mind, and they can definitely do that.

what can they do?

They can fire you, and they may be able to sue you for damages if they feel they can get their money back. Legally speaking, you're breaking a contract by refusing to work. I wouldn't push for any "rights" to do nothing, but it may be possible to arrange for some type of Work From Home arrangement to complete the handover.

If you want to work things out with the employer, don't argue from the position of "rights", because there isn't much that allows you to go on vacation during your employment.

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    This answer helped clarify the question for me more. I take it that WFH is “work from home”. — any type of remote employment Sep 5, 2023 at 16:53
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    I hope such a lawsuit would go nowhere. "I told this person to go on vacation, he did exactly that and now I come to you crying because I actually did need him, Your Honor. Can I get damages?" And OP can argue that they were given PTO, because that is what he was told "enjoy the break, go on vacation, we will revoke all your access". Only a US judge would dare to fall for the employer on this one.
    – wimi
    Sep 5, 2023 at 21:01
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    @wimi Actually, it would go somewhere because the garden leave wasn't on paper, and you should already know the issue with verbal agreements, just like verbal job offers. They're as solid as the paper it's written on. Never mind that the company has the right to change the garden leave anyways even if it is on paper.
    – Nelson
    Sep 6, 2023 at 0:45
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    Many jurisdictions (England and the USA for example) have the concept of promissory estoppel. This is where party A tells party B that they won't enforce their rights (e.g. a contractual right to make the employee come to the office), party B relies on that promise to their detriment (e.g. books a non-refundable holiday), and it would be unreasonable for party A to renege on their promise. In law things aren't always as straightforward as "legally speaking, you're breaking a contract". Sep 7, 2023 at 14:24
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    As for the verbal vs writing issue, that's a matter of evidence rather than a point of law (for the majority of cases, including most contractual disputes). I.e. the legal position will remain the same and the only issue will be which party can convince the court, on the balance of probabilities, which version of the facts are true. For this to even be an issue in the first place, the employer would need to lie on oath and pretend they didn't offer garden leave. Even if they do that, the court may decide to believe the employee over the employer. Sep 7, 2023 at 14:27
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TL;DR

Yes, a company can call you back from garden leave.


Ultimately, you should have read what you signed.

Per https://www.owenhodge.com.au/employment-law-articles/what-is-gardening-leave-and-is-it-legal/

What an employee on gardening leave can/cannot do
As an employee being placed on gardening leave, you do have some significant obligations. These obligations include;

  • You cannot attend the workplace
  • You cannot continue to perform any activities that were previously your responsibility
  • You can only participate if requested to do so by your employer
  • You must remain available to your employer to allow for transitional issues to be addressed
  • You must still abide by the existing terms of your employment contract
  • You may be unable to take another position with a new company if it directly competes with your ex-employer
  • You may be prohibited from engaging in any other form of employment for the duration of the garden leave

Can I go on holiday whilst on garden leave?
It depends on what is outlined in your employment contract. Even though you may not be required to work, you will need to remain contactable by your employer.

Assuming you're on good terms with the employer and it wasn't a stern "return to work now" order then you should bring up your circumstance with your employer.

Hopefully, they'll let you use actual PTO/vacation accruals for anything you've booked which would incur a cancellation fee otherwise.

Good luck and remember that it's a 2-way negotiation. If you start acting entitled over a misunderstanding then they'll make sure you experience what a bugger is actually entitled to.

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  • What jurisdiction is Investopedia talking about? Different places have different employment laws, and It has a United States URL.
    – nick012000
    Sep 8, 2023 at 20:53
  • @nick012000 What jurisdiction are you talking about?
    – MonkeyZeus
    Sep 11, 2023 at 11:38
  • Well, this question is tagged with Australia. It looks like you've swapped to an Australian source, though, which addresses that concern.
    – nick012000
    Sep 11, 2023 at 21:00
  • @nick012000 nay-sayers usually provide an Australian-specific resource to disprove a generic one.
    – MonkeyZeus
    Sep 11, 2023 at 21:11
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In principle, your company pays you up to the last day of your notice period, and they can ask you to work until the last day of your notice period, excluding holidays (or even holidays, but then they have to pay extra for that time).

Gardening leave is what you get when the company would rather you not being there so you don't interfere with things - worst case you come to work in the morning, and at the company entrance you are handed a box with your belongings and your notice. You also cannot take another job while on gardening leave. You can of course look for a job, sign a contract, and start the very next day.

This is different from "payment in lieu of notice". In both cases, say the company had to give you three months notice, but they can give you zero notice if they pay you as if you were working. In that case, your contract is over, you can do what you want, and it may have tax advantages.

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  • I suspect gnasher is approaching the matter as if this case was from the UK. It is indeed true that there is a subtle difference between Gardening Leave and Payment In Lieu of Notice (PILON). The latter will be paid free of UK Income Tax and NI and the company will pay you within days of that Notice of PILON. Once they have done this, you can in theory go and work for whomsoever you wish to provided you have not agreed in a Termination Agreement that you would not start with your new employer until your actual notice period was completed.
    – Nikki
    Sep 8, 2023 at 16:05
  • Both are taken to ensure you cannot acquire any more company secrets & information that you might get from being on the premises. In PILON they certainly never want you to darken their doorstep again and it is the preferred 'clean break' process. However, many jobs also include other benefits that a current employee may rely upon e.g. a company car wherein an employer might choose Gardening Leave but still, those terms have to be defined prior to you starting this period, but for that time you remain an employee and the company uses it to 100% prevent you starting early with your new employer.
    – Nikki
    Sep 8, 2023 at 16:49
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Can they actually do that and to what extent?

Yes - they're under no obligation to put you on garden leave in the first place (or to allow you to continue that).

I know I'm still technically an employee but they told be to bugger off and enjoy the leave, so I started planning my free time, booked some travel, etc. Now I would have to cancel my plans, cancel the travel, probably pay cancellation fees, etc.

Other answers have already indicated this, but you probably shouldn't have done that.

That doesn't seem fair.

Sure it is - they're still paying you, so they're entitled to ask you to do work for them.

And if I don't agree to that, or not to the extent they want, then what can they do?

I'm not familiar with Australian labor laws, but refusing to comply would presumably constitute insubordination, which is a valid reason for termination in most jurisdictions.

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I'm going to take a very different line from the other existing answers. Maybe I'm skewed by my perspective, I don't know.

the company decided to put me on a garden leave.

they told [me] to bugger off and enjoy the leave

How much of this was written down? Anyway...

As an employee, it's my very strongly held position that when I'm on any kind of leave, my time is my own. "Leave" is permission [that's the etymology*] to be absent from work while still being employed. Whether it's Annual Leave, Maternity/Paternity Leave, Family Leave, or (as seems the most similar to your case) Pre-Retirement Leave, if I'm on leave you can bet your bottom dollar I'm not working.

Now, maybe if my employer asked nicely, I would consider cancelling a day or two and popping in to work, if I didn't already have anything planned. But they'd have to ask, and I'd have to agree. And I'm pretty sure a tribunal would be on my side, if I just didn't want to.

Also, it seems to me that for an employer, forcing someone to work when you'd told them they didn't have to is a really good way of getting them to do a really half-arsed job...

* I am aware of the fallacy of the same name

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    You are reading a bit too much into the single definition of "leave", the more broad one is to just "stay away" from what you have leave, in this case it would be your day to day duties before. This usually have a form of "don't come in at all" but may well be moving to a different location, and even shift of the duties you are expected to perform, down to what's in the contract. So I have to -1, as this is just incorrect that they have to "ask nicely", at least for the UK you've mentioned.
    – Aida Paul
    Sep 5, 2023 at 9:03
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    "strongly held position" .- and unless it was so strongly held that it was held up IN COURT and the court agreed, that is not how it works if ever challenged. I can start naming countries where courts would have a field day by your delusion, and another list of countries where you are right - and fired, legally.
    – TomTom
    Sep 5, 2023 at 10:32
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    "Whether it's Annual Leave, Maternity/Paternity Leave, Family Leave, or Pre-Retirement Leave". Notice how all of those leaves are either enshrined in law or part of your contract. Which makes those examples very different to the one at hand.
    – Voo
    Sep 5, 2023 at 10:36
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    I probably held a similar opinion to you, however the UK government website (gov.uk/handing-in-your-notice/gardening-leave) says "Your employer may ask you not to come into work, or to work at home or another location during your notice period" - so I think the "leave" analogy is wrong Sep 5, 2023 at 11:15
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    "garden leave" is colloquial, not a legal term. It's NOT a leave in the legal sense, like PTO, leave of absence, medical leave, etc are.
    – Hilmar
    Sep 5, 2023 at 11:52

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