Defence Reservists will often have a substantive form of employment which they are committed to, for e.g teaching. During times when they are required to perform Reservist duties a number of protections are afforded to Reservists to protect their position within their substantive employment.
What are the rights of Reservists?
Under Part 4 and Part 5 of the Defence Reserve Service (Protection) Act 2001 (Defence Service Act) an employer cannot discriminate, disadvantage or dismiss a Reservist for reasons associated with his or her Defence service. A breach of this protection is a criminal offence.
It is also the responsibility of an employer to release a Defence Reservist when they are required to perform military duties or training.
When Reservists are absent on Defence service, the period of leave is not taken to be a period of employment, unless the Reservist is taking some type of paid or unpaid leave.
Relevantly, under section 25 of the Defence Service Act, an employer cannot require Reservists to use any form of unpaid or accrued leave entitlements (such as annual leave or long service leave) when undertaking Defence service unless both parties agree otherwise.
After returning from Defence service, a Reservist may apply to resume work at a school. Importantly an employer must, as soon as reasonably practicable, allow the Reservist to resume work, or be reinstated in the same capacity that the Reservist was employed with the school immediately prior to going on Defence leave (except in the circumstances set out in section 28(2) of the Defence Service Act).
Is a Reservist entitled to be paid whilst on Defence service or training?
Defence service is a form of unpaid leave. There is no legal obligation for an employer to pay an employee whilst he or she is absent on Defence service, including training. As outlined above, schools should note that Reservists cannot be required to take any form of paid or unpaid leave when undertaking military duties or training unless otherwise agreed.
Further information in relation to Defence leave, can be found within the Defence Force Information Sheet.