Pro–Rata Long Service Leave Presented by NSW Industrial Relations Pro–Rata Long Service Leave Topics ∗ ∗ ∗ ∗ ∗ ∗ Long Service Leave Act 1955 Pro Rata Long Service Leave Case Law and Examples Resolving Long Service Leave Issues Important Information Useful Contacts and Links 2 Pro–Rata Long Service Leave Long Service Leave Act 1955 A TRANSITIONAL ARRANGEMENT DERIVED FROM A PRE MODERN AWARD. If no award entitlement in NSW: Long Service Leave Act 1955 ∗ Applies to most employees in New South Wales – full time, part time and casual ∗ Entitlement – 2 months (8.67weeks) at 10 years of continuous service ∗ 1 month (4.33 weeks) after each additional 5 years ∗ Must be taken as soon as practicable as leave or paid on termination of employment ∗ Certain interruptions will not break service (parental leave) 3 Pro–Rata Long Service Leave Long Service Leave Act 1955 In the case of a worker who has completed at least 5 years service but less than 10 years service and whose service was terminated for reasons other than serious and wilful misconduct: ∗ a proportionate amount (pro rata) for each completed year, month, week and day The above also applies if worker leaves on account of: ∗ illness, incapacity or domestic or other pressing necessity, or ∗ Death of the worker 4 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity The act does not define illness, incapacity or domestic or other pressing necessity ∗ Worker may have entitlement if resignation is on account of the above 5 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity Test applied by courts: ∗ ∗ ∗ ∗ Was the reason claimed for termination one of the above Was such reason genuinely held by the employee Was the reason a real or motivating reason Would a reasonable person, in the circumstances be compelled to terminate their employment 6 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity Reasonable Evidence ∗ Claimant is required to provide evidence to enable the questions posed to be answered to the affirmative. ∗ In answering the questions, that the court could determine what the true facts were at the relevant time, in light of what was said and done, and of the circumstances in which those things were said and done. 7 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity Illness or Incapacity ∗ Did the illness or incapacity necessitate the termination Was the evidence sufficient for a reasonable inference that had it not been for the illness or incapacity that termination would not have occurred. 8 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity What is it? ∗ The courts have deemed the test for the above is a subjective one This means that the court views each situation on its own merits and facts. Each situation is considered different although the courts may refer to previous case law. 9 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity Test Case British Motor Corporation v Chance (1965) AR (NSW) 364 ∗ Employee was suffering a chronic mental disability that resulted in a recurrent anxiety state ∗ NSW Chief Industrial Magistrate held the illness was the cause of the workers termination ∗ Employer appealed this decision to a full bench of the NSW IRC which upheld the original decision by Chief Industrial Magistrate that the worker was entitled to pro-rata long service leave payment 10 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity Test Case Westbus Pty Ltd v Bartush (2000) NSWIRComm 26 ∗ Employee claimed loss of income, change in working conditions and the inability to collect his children from school as “domestic or pressing necessity” ∗ Commission found in favour of employer as family friend assisted in picking up children and employee unable to prove that the loss of income amounted to “domestic or pressing necessity” 11 Pro–Rata Long Service Leave Long Service Leave Act 1955 Illness, incapacity or domestic or other pressing necessity Test Case Donnelly v South Maitland Railways Pty Ltd 1964 ∗ “home duties” given as the domestic circumstance, the pregnant employee successfully arguing that this was a “domestic or pressing necessity” Franks v Kembla Equipment Co. Pty Ltd 1969 ∗ Employee was required to leave work to care for sick wife and assist with children 12 Pro–Rata Long Service Leave Resolving a dispute for Pro-Rata LSL Step 1 ∗ The employee should try and discuss the issue with the employer in the first instance ∗ If the employer disputes payment or refuses to make payment Recommend that parties seek advice regarding merits of case ∗ If not resolved the employee should serve a letter of demand on the employer: setting out the reasons for the demand and the amount in dispute with a reasonable timeframe for the employer to respond ∗ At any time contact can be made to NSW Industrial Relations on 131628 to speak with a NSW IR Officer regarding the process to resolve the situation 13 Pro–Rata Long Service Leave Lodging a Complaint with NSW IR re Pro-Rata LSL Step 2 If an employee believes they have a legitimate unresolved complaint, then they should visit the NSW IR website, www.industrialrelations.nsw.gov.au and print out the complaint form listed in the contact us area of the NSW IR website. Step 3 The complaint form is sent to NSW IR (Employee should attach evidence supporting their complaint and a copy of the letter of demand). Step 4 The complaint is registered and a 28 day pre investigation process takes place during which time a NSW IR Investigator will assist the parties to resolve the issue. Step 5 If issue is not resolved the matter may be referred for an investigation by NSW IR where a determination will be made on the evidence provided by the employer and the employee. 14 Pro–Rata Long Service Leave Lodging a Complaint with NSW IR re Pro-Rata LSL Step 6 Depending on outcome of investigation then NSW IR may: ∗ Refer the matter to Chief Industrial Magistrates court or; ∗ Recommend that the employee take their own legal action Small claim or; Civil claim 15 Useful Information and Contacts NSW IR Contacts and Services ∗ NSW IR is working with NSW businesses to help them better understand their rights and responsibilities as an employer. Through a comprehensive workshop and webinar program NSW IR are providing employers with information and tools to deal with Industrial Relations issues and Human Resource issues. ∗ Face to Face IR and HR Workshops include: Industrial Relations: ∗ ∗ ∗ Rights and Responsibilities Workplace issues for Bookkeeper and Payroll Various Modern Awards workshops including: Health Professionals Children’s Services Human Resources: ∗ ∗ ∗ ∗ Managing Employees Writing Workplace Policies Bullying in the Workplace Workplace Negotiations 16 Useful Contact & Links NSW Industrial Relations - 13 16 28 ∗ ∗ ∗ ∗ ∗ ∗ ∗ ∗ ∗ Employment Records and Payslips webinar National Employment Standards (NES) webinar plus many other hot topics Transitional Arrangements in Modern Awards Workshop Program Long Service Leave Public Holidays Entertainment Industry Taxi Industry www.industrialrelations.nsw.gov.au Fair Work Ombudsman - 13 13 94 ∗ ∗ ∗ ∗ ∗ RSS alerts – Really Simple Syndication Modern Award Finder / Pay and Conditions Guides Fact Sheets, templates, pay tools and other resources for employers Guidance Note – Transitional Arrangements www.fairwork.gov.au 17
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