Soysa v Brisbane Powerhouse Pty Ltd - [2024] QIRC 215

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Soysa v Brisbane Powerhouse Pty Ltd [2024] QIRC 215
PARTIES:	Soysa, Vidanalage Priyantha Jayamani (Applicant) v Brisbane Powerhouse Pty Ltd (Respondent)
CASE NO:	B/2024/18
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	3 September 2024
MEMBER:	Gazenbeek IC
HEARD AT:	On the papers
ORDERS:	1. *The Applicant’s application for proportionate payment of long service leave in proceedings B/2024/18 is dismissed, pursuant to section 541(b)(ii) of the Industrial Relations Act 2016* (Qld).**
CATCHWORDS:	INDUSTRIAL LAW – RECOVERY OF PRO RATA LONG SERVICE LEAVE – APPLICATION IN EXISTING PROCEEDINGS – application in existing proceedings by respondent to dismiss substantive application – where applicant had under seven years of continuous service with respondent prior to termination – where parties filed submissions addressing whether substantive application should be dismissed pursuant to section 541(b)(i) or (ii) of the Industrial Relations Act 2016 – consideration of the public interest – consideration of entitlement to proportionate payment of long service leave – consideration of continuity of service provisions – consideration of relevance of continuity of service provisions to long service leave provisions – consideration of whether applicant’s termination broke continuity of service – where applicant is not entitled to proportionate payment of long service leave – held that Commission should refrain from hearing application pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 because further proceedings are not necessary or desirable in the public interest – substantive application dismissed
LEGISLATION AND INSTRUMENTS:	Industrial Relations Act 2016 (Qld) ss 93, 94, 95, 121, 123, 124, 131, 134, 451, 475(1), 541(b)(ii)
CASES:	Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 018 Ferris v Woodlands H.R. Pty Ltd (No. 2) [2024] QIRC 172 Gill v WBC Investments Pty Ltd [2024] QIRC 153 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 Johns v Flight Centre Travel Group Limited [2020] QIRC 055 Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209 Quinlan v Rothwell & Anor [2001] QCA 176 Spears v Quantum Trading Enterprises Pty Ltd [2024] QIRC 081

Reasons for Decision

Background

Vidanalage Priyantha Jayamani (Jay) Soysa (‘the Applicant’) commenced employment with Brisbane Powerhouse Pty Ltd (‘the Respondent’) on 3 January 2017, initially in the position of Finance Officer.[1]
[1] Application for proportionate payment of long service leave, filed 7 March 2024, 20.
On 27 November 2023, the Applicant was notified that her position (by then, Finance Manager) was being considered for potential redundancy, as several roles within the Respondent’s finance department were to be consolidated “into a single senior position, with the title of Financial Controller.”[2]
[2] Letter from Ms M. Prefol, Director of People and Culture, to Ms V. Soysa, 27 November 2023, 1.
The Applicant was encouraged to apply for the new role of Financial Controller, but her application was unsuccessful. On 7 December 2023, the Applicant was informed that her employment was terminated due to redundancy, effective 8 December 2023.[3]
[3] Letter from Ms M. Prefol, Director of People and Culture, to Ms…

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: [2024] QIRC 215
Decision Date: 3 September 2024

CaseChat Overview and Summary

In the case of Soysa v Brisbane Powerhouse Pty Ltd, the applicant sought a proportionate payment of long service leave from the respondent. The dispute was heard by the Fair Work Commission. The primary legal issue was whether the Commission should dismiss the substantive application as it was not necessary or desirable in the public interest, as per section 541(b)(ii) of the Industrial Relations Act 2016. The court had to consider the public interest, the legislative basis of the relief sought, and the evidence before it.

The court noted that the public interest consideration is a discretionary value judgment based on undefined factual matters, confined only by the objects of the legislation. The court had to exercise this power with due circumspection, considering all relevant circumstances. The court also had to consider efficiency and fairness in its decision. The applicant argued she was entitled to a proportionate payment of long service leave as her employment was terminated before she completed 10 years of continuous service. However, the court found that she had not completed the requisite 7 years of continuous service, and thus was not entitled to the payment she sought.

Based on the above considerations, the court decided that the Commission should refrain from hearing the substantive application. The further proceedings were not necessary or desirable in the public interest, and the application was dismissed. The court ordered that the applicant's application for proportionate payment of long service leave in proceedings B/2024/18 was dismissed, pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld).

Orders

Orders of the court

51. Orders

52. The Commission orders that:

52. 1. The Applicant’s application for proportionate payment of long service leave in proceedings B/2024/18 is dismissed, pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld).

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

The Full Bench of Fair Work Australia in GlaxoSmithKline Australia Pty Ltd v Makin (‘GlaxoSmithKline’) noted the following in respect to the ‘public interest’:[16][26] … The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.(emphasis added)[16] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]. In Campbell v State of Queensland (Department of Justice and Attorney-General) (‘Campbell’), his Honour, Martin J, adopted the Full Bench of Fair Work Australia’s approach in GlaxoSmithKline when considering the ‘public interest’ in the context of s 541(b)(ii) of the Act, and relevantly noted that:[17] [29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials …[17] [2019] ICQ 18 [29]. While “the value judgement incorporated in s 541(b)(ii) is a broad one”[18] and a decision-maker is afforded considerable latitude in choosing what evidence to consider when exercising the power in s 541, such a power should nonetheless be exercised with caution and only after having considered all of the relevant circumstances.[19] [18] Ibid, [32].[19] Spears v Quantum Trading Enterprises Pty Ltd [2024] QIRC 081, [12]. Further, his Honour, Martin J, provided useful guidance for my approach to, and focus in, this decision, when noting in Campbell that:[20][30] In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission …(emphasis added)[20] [2019] ICQ 18 [30]. I also note the relevance of efficiency and fairness in a consideration of whether matters should be dismissed pursuant to s 541(b)(ii). In this regard, I have been guided by Hall P’s decision in Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd,[21] particularly his citation of Thomas JA’s reasoning in Quinlan v Rothwell & Anor, extracted below:[22][29] There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended … Consideration[21] (2005) 180 QGIG 1209.[22] [2001] QCA 176 [29]. Entitlement to a proportionate payment of long service leave Given the need to consider the legislative basis of the relief sought in considering the public interest, it is instructive to consider whether Ms Soysa is entitled to the proportionate payment of long service leave she seeks in her application. Section 95 of the Act relevantly provides for an entitlement to long service leave in the following terms: 95 Entitlement – employees other than seasonal employees(1) This section applies to an employee, other than a seasonal employee. …(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(ii)a domestic or other pressing necessity; or(c)the termination is because the employer – (i)dismisses the employee because of the employee’s illness; or (ii)dismisses the employee for another reason other than the employee’s conduct, capacity or performance; or(iii)unfairly dismisses the employee …

Ratio Decidendi

Legal Principle Established

I also note the relevance of efficiency and fairness in a consideration of whether matters should be dismissed pursuant to s 541(b)(ii). In this regard, I have been guided by Hall P’s decision in Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd,[21] particularly his citation of Thomas JA’s reasoning in Quinlan v Rothwell & Anor, extracted below:[22][29] There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended … Consideration[21] (2005) 180 QGIG 1209.[22] [2001] QCA 176 [29]. Entitlement to a proportionate payment of long service leave Given the need to consider the legislative basis of the relief sought in considering the public interest, it is instructive to consider whether Ms Soysa is entitled to the proportionate payment of long service leave she seeks in her application. Section 95 of the Act relevantly provides for an entitlement to long service leave in the following terms: 95 Entitlement – employees other than seasonal employees(1) This section applies to an employee, other than a seasonal employee. …(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(ii)a domestic or other pressing necessity; or(c)the termination is because the employer – (i)dismisses the employee because of the employee’s illness; or (ii)dismisses the employee for another reason other than the employee’s conduct, capacity or performance; or(iii)unfairly dismisses the employee … In summary, the Act gives employees an entitlement to long service leave on full pay after 10 years of continuous service. However, the Act also entitles an employee, after continuous service in excess of 7 years but less than 10 years, to a proportionate payment of long service leave upon the termination of their employment, where other specific conditions are met. For completeness, I note that the Applicant submitted she is entitled to a proportionate payment of long service leave, as her employment was terminated prior to completing 10 years of continuous service, pursuant to s 95(4)(c)(ii)-(iii) of the Act.[23] However, s 95(3) and s 95(4) must be read together; an employee who was terminated prior to completing 10 years of continuous service, is only (potentially) entitled to a proportionate payment of long service leave if they had surpassed 7 years of continuous service. To read s 95(4) in isolation and conclude that, for example, a person with 2 years of continuous service prior to termination may be entitled to a proportionate payment, would clearly contradict the long service leave entitlements set out in the provisions immediately above. [23] Applicant’s submissions, filed 9 July 2024, [40].