SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
FLINDERS PORTS PTY LTD v WOOLFORD
[2015] SASCFC 6
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)
22 January 2015
INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR LEGISLATION - LONG SERVICE LEAVE - ENTITLEMENT TO LEAVE - CONTINUITY OF SERVICE
INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR LEGISLATION - LONG SERVICE LEAVE - PAYMENT IN LIEU OF LONG SERVICE LEAVE - GENERALLY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL
Appeal by permission from the Full Court of the Industrial Relations Court.
The respondent claimed an entitlement to payment in lieu of long service leave pursuant to the provisions of the Long Service Leave Act 1987 (SA).
The respondent claimed the entitlement on the basis he had worked for the appellant and related employers within the meaning of s 3(3) of the Long Service Leave Act for over 20 years.
The respondent was employed as a casual employee to perform mooring, deckhand and maintenance duties in Port Lincoln Harbour. He was originally employed by the Department of Marine and Harbours and later by the Ports Corporation which was the successor to the department’s business operations in Port Lincoln, and finally by the appellant as the successor to the business of the Ports Corporation in Port Lincoln.
The respondent’s claim was allowed by an industrial magistrate. An appeal to the Full Court of the Industrial Relations Court from that judgment was dismissed.
Subsequent to the granting of permission to appeal to this Court, the respondent died. The judgment survives for the benefit of the respondent’s estate subject to this appeal. The Court substituted the respondent’s personal representative as the relevant party to the appeal.
Whether the respondent had a qualifying period of service for the purpose of accruing a long service leave entitlement. Whether the deceased was on unpaid leave for a period between 2008 and 2011 when he was in receipt of workers’ compensation. What was the relevant date of termination of the deceased’s service.
Held per Stanley J (Kelly J agreeing) allowing the appeal:
1. The deceased’s absence from work as a result of a work-related injury cannot be characterised as unpaid leave for the purposes of the Long Service Leave Act 1987 (SA) (at [30], [105] - [108]).
Held per Stanley J (Kourakis CJ and Kelly J agreeing):
2. Continuous service as defined in the Long Service Leave Act 1987 (SA) means uninterrupted or unbroken service subject to the exceptions in s 6(1) of the Act. If the service rendered by a worker is intermittent, sporadic or irregular it can only satisfy the test of “continuous service” if the breaks between service fall within the terms of s 6(1) of the Act (at [2], [32], [76]).
Held per Stanley J:
3. The deceased worked pursuant to a continuing contractual obligation to make…
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- Case
- [2015] SASCFC 6
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether Mr Woolford's employment constituted continuous service for the purposes of the *Long Service Leave Act 1987* (SA), and whether the Industrial Relations Court retained jurisdiction to make an order for payment in lieu of long service leave, given the timing of the application relative to the termination of employment. Specifically, the Court had to determine the effective date of termination of Mr Woolford's employment and consider the impact of section 13(4) of the Act, which imposes a time limit for making such applications.
The Court considered whether Mr Woolford's employment was governed by a series of ad hoc contracts or a single, overarching contract of service. It was held that Mr Woolford's employment was characterised by a single contract of service, which was lawfully terminated by notice on 23 September 2011. This conclusion was significant as it meant the three-year time limit under section 13(4) of the Act did not bar the claim, as the application was made within that period from the effective termination date. The Court also determined that a period of absence due to illness did not break the continuity of service for long service leave purposes.
The appeal was ultimately allowed. The Court found that while Mr Woolford was entitled to payment in lieu of long service leave, the calculation of this entitlement, given the limited work performed in the period immediately preceding the termination, resulted in a negligible sum. The order of the Industrial Relations Court was set aside, and the matter was remitted for recalculation of the entitlement in accordance with the Court's reasons.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I do not accept the appellant’s submission. It is founded on an incorrect premise, namely, that the deceased worked pursuant to a series of ad hoc contracts. For the reasons already explained, that was not the case. There was a single contract of service which was terminated lawfully by the giving of notice to the deceased. At common law a valid notice of termination brings the contract of employment to an end when the contract expires.[53] The notice was effective on 23 September 2011. That is when the entitlement to payment in lieu of long service leave, such as it is, arose.Was the Court deprived of jurisdiction to make an order for payment in lieu of long service leave by reason of the operation of s 13(4) of the Long Service Leave Act 1987 (SA)?[53] Grout v Gunnedah Shire Council (No. 2) (1994) 57 IR 243; Hill v CA Parsons & Co Ltd [1972] Ch 305 at 313 – 314; Griggs v Noris Group of Companies [2006] SASC 23 at [60], (2006) 94 SASR 126 at 146. Section 13 confers power on the Industrial Relations Court to order an employer (or former employer) of a worker to grant long service leave or make payment in lieu of leave to a worker.[54] Section 13(4) provides that an order cannot be made if the service of the worker was terminated more than three years before the date of the application. [54] The Court is also empowered to order payment in lieu of long service leave to the personal representative of a deceased worker. The appellant submits that the Court lacked jurisdiction to make the order by reason of s 13(4) because the deceased’s employment was terminated more than three years before the date of the application. As I have noted, the deceased made a claim for payment in lieu of long service leave on 7 May 2012. The appellant’s submission is predicated upon the proposition that the deceased’s service was terminated on 10 October 2008. Given my conclusion that the deceased’s employment was terminated with effect on 23 September 2011, s 13(4) does not operate to deprive the Industrial Relations Court of the power to make the order. Conclusion For the reasons set out above, I am of the view that the deceased was entitled to a payment in lieu of long service leave upon the termination of his employment on 23 September 2011. However, in the unusual circumstances that obtain in this case, where the deceased did not work for almost all of the three years immediately preceding his entitlement to payment in lieu of long service leave arising, the calculation of that entitlement pursuant to s 3(2) is in a negligible sum. This is an unfortunate result. I consider it deserves the attention of the Parliament. I would allow the appeal. I would set aside the order made by the learned industrial magistrate. I would remit the matter to the learned industrial magistrate for the purposes of making an order after calculating the entitlement to payment in lieu of long service leave in conformity with these reasons.