Livermore v Coles Supermarkets Pty Ltd - [2019] QIRC 165

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Livermore v Coles Supermarkets Pty Ltd [2019] QIRC 165

PARTIES:

Raymond John Clinton Livermore
(Applicant)

Coles Supermarkets Pty Ltd
(Respondent)

CASE NO:

EC/2019/486

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

CONFERENCE DATE:

1 November 2019

16 September 2019

MEMBER:

HARTIGAN IC

HEARD AT:

Brisbane and on the papers

ORDER:

The application for payment instead of taking long service leave is dismissed

CATCHWORDS:

INDUSTRIAL LAW – Payment for long service leave in lieu of taking long service leave - s 110 of the Industrial Relations Act 2016 (Qld) - whether applicant had an entitlement to long service leave

LEGISLATION:

APPEARANCES:

Industrial Relations Act 2016 (Qld), s 95, s 96 and s 110

Coles Supermarkets Enterprise Agreement 2017, cl 9.3

Mr R. Livermore, the Applicant.

Ms K. Turner, for Coles Supermarkets Pty Ltd.

Reasons for Decision

Introduction

Mr John Raymond Clinton Livermore is currently employed on a part-time basis by Coles Supermarkets Pty Ltd ('Coles') as a Level 1 team member.
Mr Livermore filed an application on 26 August 2019 for payment instead of taking long service leave. This application was made pursuant to sections 95(2)(a) and 110(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
Section 95(2)(a) provides that an employee is entitled to long service leave on full pay where the employee has completed 10 years continuous service.[1] Additionally, section 110(1) provides that an employee may be paid for all or part of an entitlement to long service leave where the Commission is satisfied that the payment should be made on compassionate grounds or on the ground of financial hardship.[2]
[1] Industrial Relations Act 2016 (Qld) s 95(2)(a).
[2] Ibid s 110(1).

In his application Mr Livermore states that he commenced employment with his employer on 24 February 2010 and the date he will become entitled to long service leave is 2 March 2020. Mr Livermore applies for payment of a proportionate amount of long service leave, namely, the equivalent of 8 weeks of long service leave.
As noted above, Mr Livermore is employed as a part-time employee with Coles. On or about 20 August 2019, Mr Livermore applied for, and was subsequently granted, a period of unpaid leave from his employment between 9 September 2019 and 5 January 2020. Accordingly, Mr Livermore remains in employment with Coles, albeit, that he is presently on a leave of absence with his employer's consent.
The Respondent objected to Mr Livermore's application on the basis that Mr Livermore was not entitled to a payment for proportionate long service leave.
On the basis of the Respondent's objections, a telephone conference was scheduled, following which, directions were issued for the parties to provide written submissions with respect to Mr Livermore's entitlement to long service leave.
The question for my determination is whether Mr Livermore has an entitlement to long service leave within the meaning of s 110(1) of the IR Act.
For the reasons referred to below, I have concluded that Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QIRC 165
Decision Date: 1 November 2019 16 September 2019

CaseChat Overview and Summary

Livermore v Coles Supermarkets Pty Ltd involves a claim by Mr Livermore against Coles Supermarkets Pty Ltd for payment in lieu of long service leave under section 110 of the Industrial Relations Act 2016 (Qld). The central issue before the court was whether Mr Livermore was entitled to such payment, given his employment history with Coles Supermarkets. The case required the court to determine whether Mr Livermore had completed the requisite 10 years of continuous service necessary to claim long service leave.

The court examined Mr Livermore’s employment history to assess whether he met the statutory requirement for continuous service. It was found that Mr Livermore did not complete 10 years of continuous service with Coles Supermarkets, as there were interruptions in his employment. This finding was pivotal as it directly impacted the eligibility for long service leave under the Act. The court concluded that because Mr Livermore had not met the continuous service requirement, he did not have an entitlement to long service leave as defined by section 110(1) of the IR Act.

Consequently, the court dismissed Mr Livermore’s application for payment in lieu of taking long service leave. The reasoning was based on the clear statutory requirement of continuous service, which Mr Livermore failed to satisfy. The court upheld the employer's position that Mr Livermore was not entitled to the requested payment.

The court’s decision was definitive in dismissing Mr Livermore’s application, thereby concluding that he was not entitled to long service leave payment under the Industrial Relations Act 2016 (Qld). The court’s findings and conclusions were succinctly encapsulated in the final order, which dismissed the application for payment in lieu of taking long service leave.

Orders

Orders of the court

The application for payment instead of taking long service leave is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, Mr Livermore does not have an entitlement to long service leave within the meaning of s 110(1) of the IR Act, as he has not completed 10 years of continuous service.Conclusion I have determined that Mr Livermore does not have an entitlement to long service leave within the meaning of s 110(1) of the IR Act. Mr Livermore's application for payment instead of taking long service leave is dismissed.

Ratio Decidendi

Legal Principle Established

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