sec.38Payment for annual leave on termination of employment

### sec.38 Payment for annual leave on termination of employment This section applies if an employee’s employment is terminated by the employee or employer. If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day ). The employer must pay the employee for the annual leave not taken, including— any public holiday during the period the employee is presumed to have taken the leave; and any annual leave loading the employee is entitled to under section 36 . If the employee has worked part of a year, the employer must pay the employee the proportionate annual leave for the part of the year the employee worked, including any annual leave loading the employee is entitled to under section 36 . The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an applicable industrial instrument states otherwise. (sec.38-ssec.1) This section applies if an employee’s employment is terminated by the employee or employer. (sec.38-ssec.2) If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day ). (sec.38-ssec.3) The employer must pay the employee for the annual leave not taken, including— any public holiday during the period the employee is presumed to have taken the leave; and any annual leave loading the employee is entitled to under section 36 . (sec.38-ssec.4) If the employee has worked part of a year, the employer must pay the employee the proportionate annual leave for the part of the year the employee worked, including any annual leave loading the employee is entitled to under section 36 . (sec.38-ssec.5) The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an applicable industrial instrument states otherwise. - (a) any public holiday during the period the employee is presumed to have taken the leave; and - (b) any annual leave loading the employee is entitled to under section 36 .