Prorata Long Service Leave

The Queensland Industrial Relations Commission (QIRC) recently heard a case regarding an employee’s claim for pro rata long service leave after resigned from his employment due to domestic necessity.

The Industrial Relations Act 2016 does allow for proportionate payment of long service leave after 7 years of continuous service if the termination is due to the employees illness or a domestic or other pressing necessity (among other reasons) and therefore the key question before the Commission was whether or not the workers resignation was due to domestic or other pressing necessity.

The employee had to resign from his position to become a full-time carer for his children, particularly his young son who had been experiencing ear, nose and throat issues since the age of 12 months.  The employees’ partner who had her own business for 5 years required her partner to take on more parental duties as her business was expanding and her income was more financially supportive for their circumstances.  The worker provided a medical certificate confirming the son’s medical conditions and upcoming appointments at the Hospital.

The employer argued that the worker had changed his reasons for resigning from firstly having to take care for his father who had been diagnosed with Parkinsons and then later stating he was  needing time off for his child’s Doctor appointments.  The employer argued there wasn’t enough information provided to confirm the resignation was necessary. (The Commission stated on this matter that they both fall with the category of domestic or other pressing necessity in any case).

The Commission concluded that the resignation was due to a domestic necessity and it is not necessary to demonstrate that the domestic necessity is pressing or urgent.  They also stated that, ‘it is beyond the scope of the statutory criteria to examine whether the Applicant could have structured a part time role alongside his caring responsibilities, particularly in circumstances where the employees son has ongoing medical needs.’  The Commission therefore determined the employee whom resigned was entitled to proportionate long service leave.