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12 June 2020

Don’t leave me this way

Employment Law
New South Wales

Asked

Employment law - Long service leave, domestic or other pressing necessity and notification after termination 

I act for an employee who resigned several months before being eligible for long service leave. The employee resigned due to pressing domestic reasons, however these reasons were not disclosed to the employer at the time of resignation.

After the employee resigned it was discovered that no pro rata long service leave had been paid. The employee was told it was not payable as they did not resign for illness or pressing domestic necessity. The reasons were later provided to the employer with medical reports to support the position. The employer still refuses to pay.

What action can the employee take?

Answered

Thank you for the question.

The entitlement to a proportionate payment of long service leave is provided by s 4(2)(iii) of the Long Service Leave Act 1955 (NSW). The Act does not define ‘domestic or other pressing necessity’ and it is silent as to the notification procedure. The NSW Industrial Relations website provides some useful assistance as to the approach courts might take on the issue.

Effectively the issue is an evidential one. If the client’s evidence is sufficiently compelling the prospects of recovery appear strong.

Section 12 of the Act provides that a worker may bring recovery action in the Local Court or Supreme Court. 

Before commencing proceedings it would be sensible to provide the employer with draft affidavits, or a detailed outline of the evidence, supporting the client’s contention that they had no other option but to resign, together with their evidence relating to the delayed notification and a letter of demand. If the payment is still withheld, then proceedings can be commenced with the prospect of a favourable costs order if the client is successful.

Regards

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