Nielsen v Sunshine Powder Coatings Pty Ltd - [2024] QIRC 88

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nielsen v Sunshine Powder Coatings Pty Ltd [2024] QIRC 088
PARTIES:	Nielsen, Daniel Duane (Applicant) V Sunshine Powder Coatings Pty Ltd (Respondent)
CASE NO:	B/2022/80
PROCEEDING:	Application for proportionate payment of long service leave
DELIVERED ON:	22 April 2024
MEMBER: HEARD AT:	Power IC On the papers
ORDER:	Pursuant to s 45 of the IR Act, the Respondent is to pay the Applicant's entitlement to proportionate payment for long service leave pursuant to s 95(4)(b)(ii) of the IR Act with respect to the Applicant's former employment with the Respondent.
CATCHWORDS:	INDUSTRIAL LAW - RECOVERY OF PRO RATA LONG SERVICE LEAVE - applicant resigned from employment - whether applicant is entitled to payment of proportionate long service leave - whether applicant terminated employment because of a "domestic or other pressing necessity"
LEGISLATION:	Industrial Relations Act 2016 (Qld), s 45, s 95, s 475
CASES:	Ma'Aelopa v State of Queensland (Queensland Police Service) [2024] QIRC 029

Reasons for Decision

Introduction

Mr Daniel Nielsen ('the Applicant') was employed by Sunshine Powder Coatings Pty Ltd ('the Employer').
The Applicant commenced employment with the Employer on 17 November 2014.
On 11 October 2022, the Applicant resigned from his employment following a period of service greater than 7 years but prior to 10 years.

The Applicant filed an application pursuant to s 475(1) of the Industrial Relations Act 2016 ('the IR Act') for pro rata long service leave.
Relevant legislation
Chapter 2, Part 3, Division 9 of the IR Act provides for an entitlement to long service leave in the following terms:
95 Entitlement – employees other than seasonal employees
…
(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—
…
(b)the employee terminates the service because of—
(i)the employee's illness; or
(ii)a domestic or other pressing necessity; or
…[1]
[1] Industrial Relations Act 2016 (Qld) s 95
In Ma'Aelopa v State of Queensland (Queensland Police Service), Deputy President Hartigan summarised consideration of the term 'domestic necessity' -
In Franks v Kembla Equipment Co, Sheldon J applied the following test when dealing with a case of "domestic necessity" as follows:
"The test, I would suggest, is whether there is a really serious problem in the home, although not necessarily a crisis. On the one hand, the colourable and frivolous should be rejected but on the other, over-exacting standards should not be adopted. After all, what…

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.

Continue reading Nielsen v Sunshine Powder Coatings Pty Ltd

Details

AGLC: Nielsen v Sunshine Powder Coatings Pty Ltd [2024] QIRC 88
Case: [2024] QIRC 88
Decision Date: 22 April 2024

CaseChat Overview and Summary

The matter of Nielsen v Sunshine Powder Coatings Pty Ltd was heard by the Fair Work Commission, focusing on the applicant's entitlement to proportionate long service leave after resigning from employment. The dispute centred on whether the applicant was justified in resigning due to a domestic or other pressing necessity, which would entitle him to a pro rata payment of long service leave under the Industrial Relations Act. The Commission was required to determine if the applicant's resignation was genuinely necessitated by domestic circumstances, thereby qualifying him for the leave payment.

The primary legal issue was whether the applicant's resignation was genuinely due to a pressing domestic necessity, as defined under section 95(4)(b)(ii) of the Industrial Relations Act. The Commission had to assess the evidence presented to ascertain if the applicant's decision to resign was indeed driven by a compelling personal need, specifically related to his parenting duties and the expansion of his partner's business, which necessitated his greater involvement in childcare.

In reaching its decision, the Commission considered the applicant's evidence regarding the necessity to be available for his child's medical appointments and to take on more parenting responsibilities. The Commission found that these circumstances constituted a 'domestic necessity' and that the applicant's decision to resign was justified. Consequently, the Commission determined that the applicant was entitled to a proportionate payment for long service leave under the Act. The evidence supported the conclusion that the applicant's resignation was driven by a pressing personal need, fulfilling the statutory criteria for such entitlement.

The Fair Work Commission ordered that the respondent, Sunshine Powder Coatings Pty Ltd, is to pay the applicant his entitlement to proportionate payment for long service leave pursuant to section 95(4)(b)(ii) of the Industrial Relations Act, reflecting the Commission's finding that the applicant's resignation was justified by a domestic or other pressing necessity.

Orders

Orders of the court

Pursuant to s 45 of the IR Act, the Respondent is to pay the Applicant's entitlement to proportionate payment for long service leave pursuant to s 95(4)(b)(ii) of the IR Act with respect to the Applicant's former employment with the Respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am satisfied on the material before the Commission that the Applicant resigned from his employment to be available to bring his child to medical appointments and take on a greater proportion of parenting duties. As the Applicant's partner's business was expanding, there was a necessity for the Applicant to resign from his employment to enable him to undertake the increased parenting duties. I am satisfied that these circumstances fall firmly within the definition of 'domestic necessity'. Accordingly, I am satisfied that the Applicant's decision to resign was made for a "domestic or other pressing necessity". Conclusion For the reasons outlined above, I have determined that the Applicant resigned from his employment because of a "domestic or other pressing necessity" within the meaning of s 95(4)(b)(ii) of the IR Act and is entitled to proportionate long service leave. Order I make the follow order:Pursuant to s 45 of the IR Act, the Respondent is to pay the Applicant's entitlement to proportionate payment for long service leave pursuant to s 95(4)(b)(ii) of the IR Act with respect to the Applicant's former employment with the Respondent.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.