Gibbons v HopgoodGanim Lawyers
[2016] QIRC 86
•16 August 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gibbons v HopgoodGanim Lawyers [2016] QIRC 086 |
PARTIES: | Gibbons, Jason Clifford v HopgoodGanim Lawyers |
CASE NO: | B/2015/37 |
PROCEEDING: | Application for payment of unpaid wages |
DELIVERED ON: | 16 August 2016 |
HEARING | Matter dealt with on the papers |
MEMBER: | Deputy President O'Connor |
ORDERS : | 1. The respondent pay Angeline Coleman the sum of $20,015.54. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR PAYMENT OF UNPAID WAGES - LONG SERVICE LEAVE ENTITLEMENTS - Whether employee has accrued more than 10 years' continued service - Whether payments made to employee while on parental leave resulted in her being on "paid leave" - Whether periods of paid maternity leave contributed to continued service |
| CASES: | Fair Work Act 2001 ss 22, 26, 27, 70 David Francis Cox v Photograve Pty Limited 187 QGIG 127 |
APPEARANCES: | Nil Decision |
This is an application by Mr Jason Clifford Gibbons ("the applicant") for an order pursuant to s 278 of the Industrial Relations Act 1999 ("the IR Act") for payment of unpaid wages for Ms Angeline Coleman, a lawyer previously employed with HopgoodGanim Lawyers ("the respondent") whose entitlement to long service leave, it is alleged, arises under s 43(3) of the IR Act. The applicant is a Principal Industrial Inspector duly appointed under the IR Act.
Relevant history
The applicant seeks an order for the payment of unpaid wages under s 278 of the IR Act for long service leave ("LSL") Angie Coleman the employee was entitled to under s 43(3) of the IR Act on termination of her employment.
A wage recovery conference was held before Kaufman DP on 4 November 2014. The matter was not resolved. A conciliation conference was held before Fisher IC on 12 October 2015. Following that conference a Statement of Agreed Facts was filed in the Commission on 27 October 2015.
The parties did not resolve the matter at conciliation and the dispute was referred to Commission for determination.
Issues
It was agreed between the parties that a threshold question should be determined on the papers, namely, whether the employee's periods of absence on paid parental leave should count towards "continuous service" for the purposes of accruing long service leave.
The employee was employed continuously by the respondent for a period from 21 July 2003 to 20 March 2014, most recently under a written contract of employment dated 23 August 2005.
The respondent was at all relevant times a partnership of individuals.
The employee resigned from her employment by notice given on 27 February 2014 to expire on 20 March 2014.
The respondent subsequently terminated the employee's employment for alleged serious misconduct on 20 March 2014. The letter of termination of employment under the hand of Ms Lisa Stockwell, Human Resources Manager relevantly states:
"I understand your disappointment with the firm's decision in relation to your request for payment of long service leave and your subsequent request to bring forward your employment termination date to today.
The firm was agreeable to this and as such Don Battams and Tracey Rundle asked you earlier this morning to provide them with a file handover to facilitate your early departure.
We note that you refused to do so. Your failure to follow this lawful and reasonable instruction is serious misconduct and we therefore have no option but to dismiss you effective 20 March 2014."
In the application to recover unpaid wages, the employee states that she did not refuse to undertake a file handover, but rather only refused to do it on 20 March 2014 because she was ill. The employee claims that she offered to attend a meeting the following day or the following week. The offer, it is claimed, was refused. It is further claimed by the employee that she was not given an opportunity to put her version of events to her supervising partner before the respondent's Management Advisory Committee decided to terminate her employment.
The applicant argues, in the alternative, that the employee was unfairly dismissed and as such was entitled to a pro rata long service leave as provided for in s 43(4)(c)(ii) of the IR act.
It is unnecessary for the employee to test the fairness of a termination before asserting an entitlement to payment in respect of s 43(c) of the IR Act. In David Francis Cox v Photograve Pty Limited,[1] Hall P wrote:
"It has to follow that an employee asserting an entitlement to payment in respect of proportionate long service leave in reliance on s.43(4)(c) may launch proceedings in the commission under s. 278(1)(a) to press the claim. I am unable to identify any language in the Industrial Relations Act 1999, to suggest that an employee relying on s. 278(1)(a) must first or contemporaneously test the fairness of the termination under Chapter 3, Part 2. Because of s. 278(3)(c), that which may be done by an employee may be done by an inspector on his/her behalf.
The Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices) does not apply to the exclusion of the Industrial Relations Act 1999 so far as the Industrial Relations Act 1999 deals with long service (see. Work Choices s. 16(1)(a) and (3)(f)."
[1] 187 QGIG 127.
The employment period exceeded 10 years.
During her period of employment, the employee's service was interrupted by three periods of parental leave. The periods of parental leave were as follows:
(a) The first period of parental leave took place from 6 August 2007 to 30 September 2007 and was wholly paid by the respondent according to the arrangements provided for in the contract of employment and a letter from the respondent to the employee dated 16 July 2007;
(b) The second period of parental leave took place from 2 November 2009 to 24 January 2010 and was wholly paid by the respondent according to the arrangements provided for in the contract of employment and a paid parental leave policy adopted by the respondent on 1 January 2008; and
(c) The third period of parental leave took place from 13 February 2012 to 9 December 2012 and was partly paid by the respondent up to 15 July 2012 according to the arrangements provided for in the contract of employment and the paid parental leave policy.
During the third period of parental leave, the employee was paid the equivalent of 12 weeks (0.2307 years) at her full rate of pay. By agreement between the employee and the respondent, two weeks of leave was paid by the respondent at her rate of pay and the balance over 20 weeks at half pay. In total, the equivalent of 12 weeks' pay was paid, over a period of 22 weeks (0.4222 years).
Relevant statutory provisions
The "family leave" provisions of the IR Act are contained in Part 2 of Chapter 2. They relevantly provide as follows:
"17 Definitions for pt 2
…
parental leave means long parental leave, short parental leave, adoption leave or surrogacy leave.
parental leave entitlement means the parental leave entitlement mentioned in section 18(2), (3), (4) or (4A)."
"18 Entitlement
(1) This section details the parental leave entitlement of an employee for -
(a)an employee who is not a long term casual employee and who has had at least 12 months continuous service with the employer; or
(b)a long term casual employee.
(2) A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid maternity leave -
(a) for the child's birth; and
(b) to be the child's primary caregiver.
(3) For the birth of a child of an employee's spouse, the employee is entitled to the following leave -
(a) an unbroken period of up to 1 week's unpaid short parental leave;
(b) a further unbroken period of up to 51 weeks unpaid long parental leave.
(4) For the adoption of a child, an employee is entitled to the following leave -
(a) an unbroken period of up to 3 weeks unpaid short adoption leave;
(b) a further unbroken period of up to 49 weeks unpaid long adoption leave.
(4A) An employee who is an intended parent under a surrogacy arrangement is entitled to the following leave -
(a) an unbroken period of up to 1 week's unpaid short surrogacy leave;
(b)a further unbroken period of up to 51 weeks unpaid long surrogacy leave.
(5) However, parental leave must not extend -
(a)beyond 1 year after the child was born or adopted or started residing with the employee under the surrogacy arrangement; or
(b)if an application for an extension of parental leave under section 29A is agreed to - beyond 2 years after the child was born or adopted or started residing with the employee under the surrogacy arrangement.
(6) In this section -
continuous service means service, including a period of authorised leave or absence, under an unbroken employment contract."
"24 Continuity of service
(1) Parental leave does not break an employee's continuity of service.
(2) Parental leave is not to be taken into account in working out the employee's period of service, other than -
(a)beyond 1 year after the child was born or adopted or started residing with the employee under the surrogacy arrangement; or
or
(b)expressly provided in this Act, an industrial instrument or employment contract."
"42A Application of pt 6 for particular purposes
42A To remove any doubt, it is declared that the provisions of part 6 are to be applied when working out an employee's rights and entitlements to long service leave under this part or an industrial instrument."
Part 3 Chapter 2 of the IR Act contains the provisions applicable to Long Service Leave:
"43 Entitlement
(1) This section applies to all employees, other than seasonal employees.
(2) An employee is entitled to long service leave on full pay of -
(a)for the first 10 years continuous service - 8.6667 weeks; and
(b)if the employee has completed at least a further 5 years continuous service - another period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.
(4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if -
(a) the employee's service is terminated because of the employee's death; or
(b)the employee terminates the service because of -
the employee's illness or incapacity; or a domestic or other pressing necessity; or
(c)the termination is because the employer -
dismisses the employee for a reason other than the employee's conduct, capacity or performance; or
unfairly dismisses the employee; or
(d) the termination is because of the effluxion of time and -
the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and
the employee was prepared to continue the employment with the employer.
…
(6) An employee who is entitled to long service leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section.
…
(9) In this section -
proportionate payment means a payment equal to the employee's full pay for a period that bears to 8.6667 weeks the proportion that the employee's period of continuous service (stated in years, and a fraction of a year if necessary) bears to 10 years."
Part 6 Chapter 2 of the IR Act provides:
"71 Continuity of service - generally
…
(3) An employee's continuity of service with an employer is not broken by an absence, including through illness or injury -
(a)on paid leave approved by the employer; or
(b)on unpaid leave approved by the employer.
…
(9) However, a period for which the employee is away from work under subsection (3)(b), (4), (5), (6)(b) or (7) is not service under this part unless -
(a)this Act or an industrial instrument provides otherwise; or
(b)the commission directs otherwise.
…"
Section 22 of the Fair Work Act 2001 (the "FW Act") provides for the meaning of "service" and "continuous service". Section 22 provides:
"22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a)any period of unauthorised absence;
(b)any period of unpaid leave or unpaid authorised absence, other than:
(i)a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii)a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii)a period of leave or absence of a kind prescribed by the regulations;
(c)any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service."
Section 26 of the FW Act provides:
"26 Act excludes State or Territory industrial laws
(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.
…"
However, s 27 provides that some state and territory laws continue to have limited operation in relation to national system employees and employers by virtue of section 27 of the FW Act. Section 27 relevantly provides:
"27 State and Territory laws that are not excluded by section 26
(1) Section 26 does not apply to a law of a State or Territory so far as:
…
(c)the law deals with any non‑excluded matters; or
(d)the law deals with rights or remedies incidental to:
…
(iii)any non‑excluded matters.
Note:Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.
(2) The non-excluded matters are as follows:
…
(g)long service leave, except in relation to an employee who is entitled under Division 9 of Part 2-2 to long service leave;
…"
Section 70 of the FW Act provides for the entitlement to unpaid parental leave:
"70 Entitlement to unpaid parental leave
An employee is entitled to 12 months of unpaid parental leave if:
(a)the leave is associated with:
(i)the birth of a child of the employee or the employee's spouse or de facto partner; or
(ii)the placement of a child with the employee for adoption; and
(b)the employee has or will have a responsibility for the care of the child."
Arguments
Put simply, it is the applicant’s case that the employee’s three periods of paid parental leave should count towards ‘continuous service’ for the purposes of long service leave accrual.
The respondent submitted that:
"The fundamental defect in the argument is that none of the parental leave taken by Ms Coleman had any basis other than as leave to which she was statutorily entitled - being unpaid parental leave. While the Respondents were certainly implicated in the payments, and can fairly be said to have "approved" them, the fact that payments were made could not, by itself, bring with it an additional liability for the employer, found in a service based accrual. Nothing the Respondents did, including and particularly paying money to Ms Coleman during those periods of leave, resulted in her taking an additional form of leave. It is one thing to say that the Respondents agreed to pay (and did pay) various sums of money to Ms Coleman. It is quite another to say - and there is no basis for the Commission to find - that, by doing so, Ms Coleman must be taken to have been on a form of paid leave, approved by the Respondents, which counted as service toward the accrual of a long service leave entitlement."
Section 71 of the IR Act specifically provides that a period for which the employee is away from work under s 71(3)(b) is not service under Part 6 of the IR Act unless the Act or an industrial instrument provides otherwise or the Commission directs otherwise.
On 1 January 2008, the respondent adopted a paid parental leave policy (the "PPL Policy"). The PPL Policy provides that:
"Continuous service means a single period of paid service without interruption. Although periods of parental leave do not count towards accrued service, these types of leave do not constitute an interruption to continuous service."
The PPL policy needs to be read in the context of Chapter 2 Part 2. The provision in the PPL policy which states "… periods of parental leave do not count towards accrued service" should be read in the context of the IR Act as being periods of unpaid parental leave. Such reading is consistent with s 24 of the IR Act.
Under the PPL Policy, an employee is only entitled to paid parental leave when an employee has been with the respondent for a prescribed period of time. An employee with three to five years of continuous service is entitled to a period of six weeks paid parental leave. An employee with more than five years of continuous service with the respondent is entitled to a period of 12 weeks paid parental leave.
A distinction needs to be drawn between a statutory entitlement to unpaid parental leave as provided for in s 18 of the IR Act or s 70 of the FW Act and the provision of "paid leave approved by the employer".
The leave provided for in s 18 of the IR Act does not require approval from the employer. It is a kind of leave based on a statutory entitlement. However, the kind of leave granted by the respondent to the employee was of a different character.
The respondent submitted that the only leave the employee was taking was unpaid parental leave. It is contended by the respondent the employee was not "taking any other kind of paid leave". In particular, the respondent submits that no paid leave was approved by them. In my view, the facts before the Commission do not support such a contention.
The material before the Commission suggests the leave taken by the employee was "paid leave approved by the employer" for the purposes of s 71(3) of the IR Act. In support of that conclusion I refer to the following:
(a) The correspondence sent to the employee on 16 July 2007, 18 August 2009 and 21 September 2011 specifically refer to "paid maternity leave" or "paid parental leave";
(b) The correspondence sent to the employee dated 9 March 2007 refers to "… RE: APPLICATION FOR PARENTAL LEAVE …";
(c) The correspondence sent to the employee dated 18 August 2009 refers to "… your parental leave request form dated 19 June 2009 …";
(d) The correspondence sent to the employee dated 21 September 2011 refers to "… your parental leave request …";
(e) The "Hopgood Ganim Lawyers Employment Manual" contains the "Paid Parental Leave" Policy; and
(f) The PPL Policy provides that:
"Paid parental leave is paid on usual pay days. An employee may request that the payments are made at half pay or other denominations until the payment has been exhausted."
It is the contention of the respondent that reference to "paid parental leave" in the correspondence between the respondent and the employee and in the PPL Policy "… was no more than a convenient description of the arrangement - a label - by which the Respondent paid Ms Coleman during parts of her statutory unpaid parental leave." I do not accept the submission.
While a contract of employment or a policy cannot reduce a statutory entitlement, it can provide for more favourable entitlements. What the PPL Policy did was to provide to the employee a more favourable parental leave entitlement. The PPL Policy provided, in addition to the statutory entitlement to unpaid parental leave, a period of paid parental leave, the length of which was calculated by reference to the period of continuous service with the respondent.
The phrase "continuous service" is defined in s 42 of the IR Act and for the present purposes relevantly provides: "The employee's continuous service for the same employer …".
It is not possible to calculate the employee's entitlement for long service leave solely by reference to s 42 of the IR Act.
Section 42A of the IR Act provides:
"42A To remove any doubt, it is declared that the provisions of part 6 are to be applied when working out an employee's rights and entitlements to long service leave under this part or an industrial instrument."
Section 42A of the IR Act was inserted as a result of the Industrial Relations Act and Other Acts Amendment Act 2007. The Explanatory Notes to that Bill[2] state:
"Division 1A Relationship between parts 3 and 6 clarifies that the provisions of part 6 of chapter 2, dealing with continuity of service and employment, are to be applied when working out an employee's long service leave rights and entitlements. This is to put beyond doubt that part 6 is an integral part of the long service leave laws and, as such, deals with a non-excluded matter under section 16(3) of Work Choices.[3]
[2] Explanatory Notes, Industrial Relations Act and Other Acts Amendment Bill 2007, 6.
[3] Section 16(3) of the Workplace Relations Act 1996 (Cth)(repealed) is the equivalent of s 27(1)(c) Fair Work Act 2009. Long service leave is a non-excluded matter under s 16(3).
It is clear from the wording of s 42A of the IR Act, and the Explanatory Notes to the Industrial Relations Act and Other Acts Amendment Bill 2007, that s 71 is to be used when calculating the length of continuous service for the purposes of determining long service leave rights and entitlements.
Section 71(3)(a) of the IR Act provides that an employee's continuity of service with an employer is not broken by an absence on paid leave approved by the employer.
I accept the argument there is nothing in the IR Act which would suggest that "paid leave" and "unpaid leave" referred to in s 71(3) would exclude reference to paid or unpaid parental leave.
Section 71(3) of the IR Act states an employee's continuity of service with an employer is not broken by an absence on paid leave approved by the employer. It does not, as is submitted by the respondent, require that there be some additional form of leave.
The respondent submitted the "statutory provisions" resulted in the periods during which the leave was taken by the employee not counting as service for the purpose of accumulating a long service leave entitlement. It is the contention of the respondent that the PPL Policy, adopted from 1 January 2008 and applicable to the second and third periods of leave, did not change this. The respondents argue that the PPL Policy:
(a) describes an agreement by the respondents to pay money, upon certain conditions, to persons taking statutory parental leave;
(b) does not describe or deal with parental leave as a form of "paid leave approved by the employer" within s 71(3)(a) of the IR Act;
(c) does not change the character of the leave in question as unpaid parental leave authorised by statute; and
(d) does not create a new or additional kind of leave "approved" by the employer which counts as service for any purpose.
If the parental leave was unpaid, then the period of unpaid parental leave would not be taken into account as service for the purposes of an accrual of a long service entitlement. If the period of parental leave was paid, and approved by the employer, then the period of leave would be taken into account as service with respect to accrual of a long service entitlement.
If an employee is on a period of unpaid leave, such as provided for under s 18 of the IR Act or s 70 of the FW Act, the period of the unpaid leave does not count towards the employee’s service for the purpose of accruing long service leave, regardless of whether the employee is receiving government-provided PPL. In addition the Paid Parental Leave Act 2010 expressly states that a period of unpaid leave is not taken to be a period of paid leave because an employee is receiving Government PPL.
In my view, if an employee is in receipt of employer-provided paid parental leave in accordance with a term of an employer policy, the employee is taken to be on a period of ‘paid leave’ in accordance with both the IR Act and the FW Act. That is, the period of the "paid leave" is counted as service for the purpose of accruing long service leave.
What the respondent was approving was a period of paid parental leave - they were not approving the employee's parental leave, that being a statutory entitlement.
The proper characterisation of the leave taken by the employee prior to 1 January 2010 was parental leave. Parental leave is defined in s 17 of the IR Act as "…long parental leave, short parental leave, adoption leave or surrogacy leave." Thereafter, an equivalent type of leave is provided for under the National Employment Standards ("NES") and s 70 of the FW Act.
I accept the submission of the respondent that the nature of the leave did not change. However, what changed was whether that leave was paid.
In relation to the first period of employment, the respondent submits the payment was an unconditional gratuity or gift given by the respondent to the employee over and above any legal entitlement. The employee was, according to the respondent, a volunteer in the exercise.
The second period of leave taken by the employee was from 2 November 2009 to 24 January 2010. From 1 January 2010 the employee ceased to be on parental leave under the IR Act and commenced on parental leave under the equivalent provisions of the NES under the FW Act.
Item 18 of Schedule 4 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that if an employee was, immediately before 1 January 2010, taking a period of "… a type of leave under … a State industrial law", and there was an equivalent type of leave under the NES, then the employee was entitled to continue on leave of the equivalent type under the NES for the remainder of the period. Item 18 relevantly provides:
"18 Leave that, immediately before the Division 2B referral commencement, is being, or is to be, taken under Division 6 of Part 7 of the WR Act or a State industrial law
(1) If:
(a)an employee was, immediately before the Division 2B referral commencement, taking a period of a type of leave under:
(i)Division 6 of Part 7 of the WR Act; or
(ii)a State industrial law; and
(b)there is an equivalent type of leave under the National Employment Standards;
the employee is entitled to continue on leave of the equivalent type under the National Employment Standards for the remainder of the period."
The respondent contends that the only leave that the employee was on prior to 31 December 2009 was unpaid parental leave under the IR Act. Paid parental leave is not a type of leave provided for or recognised by the IR Act. Equally, under the FW Act and the NES there is no equivalent to paid parental leave. Accordingly, the respondent submitted that, as at 31 December 2009, there is no factual or legal basis to argue that the employee was on "paid parental leave" as a form of leave being taken under the IR Act.
I do not accept that submission. As noted elsewhere, the employee had prior to 31 December 2009 an entitlement to parental leave under the IR act. She was, as at the relevant time, taking parental leave. The words of item 18(1)(a) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 make it clear that immediately before the referral, the employee was "taking a period of leave" under the IR Act. That type of leave had an equivalent type of leave as provided for under s 61(2)(c) FW Act being "parental leave and related entitlements" under Division 5 of the FW Act. The application of the transitional provisions result in no change in the position of the employee.
Contract of Employment
The employment contract provides in clause 7(c) that long service leave accrues in accordance with the statutory provisions. Clause 7(f) provides that the employee is entitled to parental leave in accordance with the statutory provisions. The employee agreed under clause 8(b) of the employment contract to be bound by the respondent's policies and procedures.
The respondent's Employment Manual relevantly provides that:
"Long service leave is provided in accordance with the relevant State and Federal Legislation."
Section 43 sets out an employee's entitlement to long service leave under the IR Act. By virtue of subsection (1), the section applies to "… all employees, other than seasonal employees". Section 43(2)(a) provides that an employee is entitled to long service leave on full pay. "Full Pay" is defined in Schedule 5 of the IR Act to mean "… payment in full for the time that an employee is absent from work."
On an application of the relevant statutory provisions, the employee's period of paid parental leave approved by the employer would count as service for the purposes of determining the employee's entitlement to long service leave.
Having formed that view, it is now necessary to consider how the third period of paid parental leave, paid at half pay, should to be treated.
The employee was paid parental leave on full pay for the first two weeks and half pay for a further 20 weeks of the third period of paid parental leave.
It was agreed between the parties that if all three periods of paid parental leave were counted as part of the employee’s period of continuous service with the respondent, upon termination she was entitled to a payment for accrued but untaken long service leave entitlement, based upon continuous service exceeding 10 years, in either of the following alternate amounts:
(a) if the third period is treated as 12 weeks’ continuous service - $19,642.31;
(b) if the third period is treated as 22 weeks’ continuous service - $20,015.54.
It is submitted by the applicant that the third period of paid parental leave should account as 22 weeks of continuous service. The respondent submitted that if it was accepted that the period of paid parental leave was treated as part of the employee's continuous service then that period should be calculated as 12 weeks and not 22 weeks.
The respondent contends that, by express agreement between the parties, the amount of money paid was equivalent to the employee's full time pay rate of pay for the period of twelve weeks.
By letter dated 21 September 2011, the respondent replied to the employee's "parental leave request". The respondent wrote:
"3. Paid parental leave
As you have been with the firm for more than 5 years, you are entitled to 12 weeks paid parental leave. You have requested that these 12 weeks paid at half pay over a period of 24 weeks. You have indicated that you would like to use your annual leave first, at full pay on a weekly basis, and once this has been exhausted you would then like your parental leave payments to commence."
The PPL policy provides that:
"An employee may request that the payments are made at half pay or other denominations until payment has been exhausted."
Section 46(1) of the IR Act requires an employer to pay the employee the ordinary rate being paid to the employee immediately before the leave is taken.
There is nothing within the IR Act to suggest that the period of continuous service should be reduced on a pro rata basis.
By way of example, the Commission was referred to section 49 of the IR Act which contemplates a mix between full-time and part-time work. The provision does not affect the accrual of long service leave but does operate to reduce the quantum of any long service leave payment.
Accordingly, the 22 weeks of paid parental leave taken by the employee ought to be calculated as 22 weeks continuous service.
Order
For the reasons advanced above, I order the respondent pay Angeline Coleman the sum of $20,015.54.
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