McCowan AND Canossa Services
[2018] QIRC 142
•27 November 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McCowan AND Canossa Services [2018] QIRC 142 |
PARTIES: | McCowan, Melanie AND Canossa Services |
CASE NO: | EC/2018/512 |
PROCEEDING: | Application for payment instead of taking long service leave |
DELIVERED ON: | 27 November 2018 |
MEMBER: HEARD AT: | Thompson IC On the papers |
ORDERS: | 1. Application refused. |
| CATCHWORDS: | INDUSTRIAL LAW – APPLICATION - Payment instead of Long Service Leave – Entitlement - Applicant has no entitlement - Application refused. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 95 and s 110 |
Reasons for Decision
On 16 November 2018 Melanie McCowan (applicant) filed with the Industrial Registrar an application pursuant to s 110 of the Industrial Relations Act 2016 (the Act) in which she sought payment instead of taking long service leave on the grounds of financial hardship.
The employer was identified as Canossa Services (respondent).
Applicant
The applicant indicated in her application that her employment had commenced with the respondent on 23 March 2011, that she had become entitled to long service leave on 23 March 2018 and it was her impression that if she was suffering severe hardship she could access her long service payment after seven years of employment.
Respondent
In a Directions Order issued by the Queensland Industrial Relations Commission (QIRC) (dated 16 November 2018) the respondent was directed to provide a statement containing the following:
(a) The present entitlement of the Applicant to long service leave represented in:
i. Hours; and
ii. The net and gross monetary value of the long service leave applied for.
(b) The title of the Industrial Instruments which apply to the Applicant (i.e. Award, Certified Agreement).
In correspondence (dated 21 November 2018) the respondent informed the QIRC that:
·the applicant had commenced employment as a casual in Food Services on 23 March 2011 and had advised on 9 September 2018 that she would be unable to accept regular shifts offered to her from 10 September 2018 as she had obtained alternate employment;
·the respondent had not terminated the applicant's employment but she had abandoned her employment;
·the applicant had returned the keys (provided by the respondent) on 8 September 2018; and
·the applicant had requested on 8 September 2018 that a Separation Certificate be issued as a consequence of the termination of her employment, effective 8 September 2018. The Certificate was issued on 8 November 2018.
The applicant had no entitlement to long service leave on the basis that she had not met the requirement period of ten years, having abandoned her employment after seven years.
Conclusion
Legislation relevant to this application is as follows:
95 Entitlement—employees other than seasonal employees
(1) This section applies to an employee, other than a seasonal employee.
Note -
For provisions applicable to seasonal employees, see subdivisions 7 and 8.(2) The employee is entitled to long service leave, on full pay, of -
(a)if the employee has completed 10 years continuous service - 8.6667 weeks; and
(b)after 10 years service, if the employee has completed at least a further 5 years continuous service - a 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 -(i) the employee's illness or incapacity; or
(ii) a domestic or other pressing necessity; or
(c) the termination is because the employer -
(i)dismisses the employee for a reason other than the employee's conduct, capacity or performance; or
(ii)unfairly dismisses the employee; or
(d) the termination is because of the passing of time and -
(i)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
(ii)the employee was prepared to continue the employment with the employer.
…
110 Payment instead of long service leave
(1)An employee may be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave under subsection (2) or (3).
(2) The payment may be made if -
(a)a relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement; and
(b)the employee and employer agree by a signed agreement the payment may be made; and
(c) the payment is made in accordance with the industrial instrument.
(3)If no relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement, the payment may be made only if the payment is ordered by the commission on application by the employee.
(4)The commission may order the payment only if satisfied the payment should be made -
(a) on compassionate grounds; or
(b) on the ground of financial hardship.
…
The entitlement for long service leave requires that an employee has completed ten years continuous service at which time they can access such leave although in some circumstances an employee who has completed at least seven years continuous service is entitled to a proportionate payment if their employment is terminated because of:
·the employees death;
·illness or incapacity; or
·domestic or other pressing necessity.
In this case it was the applicant who upon her own volition ended the employment arrangement by the refusal to accept regular shifts offered to her beyond 10 September 2018 which unfortunately extinguishes any right for a proportionate payment of such leave pursuant to s 95(4)(a) or (b) of the Act.
The application is refused
Order
1.Application refused.
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