Williams v State of Queensland (Queensland Health)
[2022] QIRC 394
•13 October 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Williams v State of Queensland (Queensland Health) [2022] QIRC 394 |
PARTIES: | Williams, Danielle Cara v |
CASE NO: | EC/2022/260 |
PROCEEDING: | Application for payment instead of taking long service leave |
DELIVERED ON: | 13 October 2022 |
MEMBER: HEARD AT: | Hartigan IC 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 - application dismissed |
LEGISLATION: CASES: | Industrial Relations Act 2016 (Qld), s 95 and s 110 Medical Officers (Queensland health) Award – State 2015 The Minister for Industrial Relations Directive 01/19: Leave without Salary Credited as Service |
Reasons for Decision
Introduction
On 3 May 2022 Dr Danielle Cara Williams applied to the Queensland Industrial Relations Commission ('the Commission') seeking orders for a proportionate payment of her long service leave entitlement on compassionate grounds. This application was made pursuant to s 110 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
Dr Williams' employment with Queensland Health ('the Department') as a full-time Junior House Officer commenced on 20 January 2014.
By letter dated 8 December 2020, the Applicant submitted her resignation letter which took effect on 24 January 2021.
On 31 May 2022, the Industrial Registry received email correspondence from the Department objecting to Dr Williams's application on the basis that Dr Williams does not have the necessary seven (7) years of continuous service to seek payment in lieu of taking long service leave.
I listed the matter on 21 July 2022 to hear from the parties with respect to the Department's objections. During the course of the matter, Dr Williams indicated that she wished to continue with her application. Consequently, I issued directions with respect to the filing of submissions.
Both Dr Williams and the Department provided written submissions.
The question for my determination is whether Dr Williams has an entitlement to long service leave within the meaning of s 95 of the IR Act. Specifically, whether Dr Williams has completed 7 years "continuous service" as referred to in s 95(3) of the IR Act
For the reasons referred to below, Dr Williams does not have an entitlement to long service leave.
The Respondent's submissions
In compliance with the directions, the Department filed submissions with respect to the objections it has to Dr Williams' application. The Department provides the following reasons in support of its objections as follows:[1]
[1] Respondent's submissions filed 26 July 2022.
10. The Applicant does not meet the criteria for payment of long service leave under section 95(4)(a)-(d) of the Industrial Relations Act 2016 (Attachment 3).
11. Notwithstanding this, clause 25(d) of the Medical Officers (Queensland Health) Award – State 2015 (Attachment 4) provides that employees are entitled to a cash equivalent of long service leave where the minimum period of continuous services is 7 years upon termination of employment (except where termination is due to dismissal or career advancement).
12. The Minister for Industrial Relations Directive 11/18: Long Service Leave (Directive 11/18) in section 27. Definitions, states: Continuous Services includes service and periods of leave that have been recognised for long service leave purposes under the relevant Directive (Attachment 5).
13. The relevant Directive is The Minister for Industrial Relations Directive 01/19 Leave without Salary Credited as Service (Directive 01/19) which prescribes the entitlement for leave without pay being credited as services for leave and salary purposes. (Attachment 6).
14. Section 7.1 of Directive 01/19 provides that leave without salary is only credited as service towards Long Service Leave for the first 3 months of any continuous period of unpaid parental leave (Attachment 6).
15. Directive 01/19 also prescribes that where the total period of special leave without pay exceeds 9 working days, the total period of leave shall not be credited as service.
…
22. The Applicant's total period of service is calculated as 6 years, 10 months and 2 days. Therefore, the Applicant has not met the minimum period of continuous service of 7 years upon termination of her employment to be eligible for payment of long service leave.
…
In support of its position, the Department refers to periods of unpaid leave taken by Dr Williams, which it submits cannot be included when determining the period of continuous service. Dr Williams took periods of leave between the following dates:
16. Between 22 December 2014 and 3 May 2015, the Applicant took a period of unpaid maternity leave. The service does not dispute that this was approved leave (Attachment 7).
17. In accordance with Directive 01/19, the Service only credited the period of unpaid maternity leave from 22 December 2014 to 22 March 2015 as service.
18. Between 18 January 2016 and 31 January 2016, the Applicant accessed special leave without pay. The service does not dispute that this was approved leave (Attachment 7).
19. The Applicant was approved 13 days of leave without pay and in accordance with Directive 01/19 the Service did not credit this period as service towards Long Service leave (Attachment 7).
…
In calculating Dr Williams' length of service, the Department rely on the following periods of service:
a) 20 January 2012 to 22 March 2015;
b) 4 May 2015 to 17 January 2016; and
c) 1 February 2016 to 17 January 2021.
…
The Department submits that the total period of service is calculated as six (6) years, ten (10) months and two (2) days.
Dr Williams disputes the Department's methodology in calculating the period of continuous service. Dr Williams made the following submissions with respect to the relevant periods:
[14]Between 22 December 2014 and 3rd May 2015, the Applicant took a period of approved unpaid parental leave without any preceding paid parental leave, which would have amounted to 180 days of leave calculated towards the Applicant's service.
[15]Between 18th January 2016 and 31st January 2016, the Applicant was provided with 13 days of unpaid leave by the Service, due to being promoted to a more senior role. This was not by the choice of the applicant, and thus should be calculated towards the Service provided.
[16]The Applicant resigned from the Service 24th January 2021.
[17]The Applicant disputes the Respondent's calculation of service.
[18]The Applicant total period of service is calculated as 7 years, 0 months and 5 days. Therefore, the applicant is eligible for payment of long service leave.
…
The IR Act
Section 95 of the IR Act 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.
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.
…
Section 110 provides for payment of a long service leave entitlement as follows:
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.
…
Pursuant to s 110(2)(a) consideration must also be had as to whether a relevant industrial instrument provides for the employee to be paid for all or part of the entitlement.
Dr Williams' employment with the Department is covered by the Medical Officers (Queensland Health) Award – State 2015 ('the Award'). Clause 25(d) of the Award provides that employees are entitled to a cash equivalent of long service leave where the minimum period of continuous service is seven (7) years upon termination of employment, except where termination is due to dismissal or career advancement.
Further, The Minister for Industrial Relations Directive 01/19 Leave without Salary Credited as Service ('the Directive') also applies to Dr Williams' employment.
Clause 7.1 of the Directive states that leave without salary is only credited as service towards Long Service Leave for the first three (3) months of any continuous period of unpaid parental leave. The Directive also states that any continuous period of special leave not exceeding nine (9) working days will be credited as service.
Consideration
Period of unpaid parental leave – 22 December 2014 to 3 May 2015
Dr Williams took a period of unpaid parental leave between 22 December 2014 and 3 May 2015. The Department does not dispute that the leave was approved.
The Department relies on clause 7.1 of the Directive, in respect to its contention that leave without salary is only credited as service towards long service leave for the first three (3) months of any continuous period of unpaid parental leave. On that basis, the Department contends that the period in excess of three (3) months, being the period 23 March 2016 to 3 May 2015, does not count towards a period of continuous service.
Dr Williams disagrees with the Department's contentions with respect to the period of unpaid leave and argues that the whole period of the unpaid parental leave should be included in calculating the period of continuous service.
In support of her position, Dr Williams states that the estimated due date of her first child fell twenty-six (26) days prior to the completion of her initial twelve (12) months of employment with the Department making Dr Williams ineligible for paid parental leave.
Dr Williams further states that the Department, on compassionate grounds, offered to approve a period of unpaid leave between 22 December 2014 to 3 May 2015. Dr Williams contends that she intended to continue service with the Department following this period of leave and did in fact do so until January 2021. It is on this basis that Dr Williams argues that all of the period of the unpaid leave (between 22 December 2014 to 3 May 2015) should be counted towards her continuous service for the purpose of calculating Dr Williams' long service leave entitlement.
The purpose of the Directive is to prescribe the entitlement for leave without pay being credited as service for leave and salary purposes.[2]
[2] Clause 1 of the Directive.
As noted above, clause 7.1 of the Directive prescribes that for a period of unpaid parental leave the first three months of any continuous period is recognised for the purpose of long service leave.
Accordingly, only the period between 22 December 2014 to 22 March 2015 is recognised for the purpose of calculating the long service leave entitlement. Consequently, the period between 23 March 2015 to 3 May 2015 (41 days) does not count towards Dr Williams' continuous service for the purpose of calculating her long service leave entitlement.
Special leave without pay – 18 January 2016 to 31 January 2016
The Department contends that Dr Williams accessed special leave without pay between 18 January 2016 and 31 January 2016, a period of thirteen (13) days, and argues that this period should not be credited towards the calculation of Dr Williams' long service leave entitlement.
Dr Williams contends that the Department requested that she take this special leave for the maintenance of the Department's rostering practices when Dr Williams was promoted from Resident Medical Officer to a Medical Registrar/Principle House Officer.
Putting aside the reasons for the leave, it appears to be accepted between the parties that special leave was taken during the relevant period.
The Directive prescribes that any continuous period of special leave not exceeding nine (9) working days may be recognised for the purpose of long service leave. However, there is a note following the table at clause 7.1,[3] which states that where the total period of continuous leave exceeds the specified period, the total period of leave shall not be credited as service.
[3] See paragraph (3) on pg. 3 of the Directive.
Relevantly, the special leave period of thirteen (13) days exceeds the specified period of nine (9) days. Consequently, the special leave taken between 18 January 2016 to 31 January 2016 is not recognised for the purpose of calculating Dr Williams' long service leave entitlement.
Period between last day worked on 17 January 2021 and the date of the termination of the employment being 24 January 2021
The Department contends that whilst Dr Williams' resignation letter was effective from 24 January 2021, the last day Dr Williams actually worked was on 17 January 2021. The Department relied on 17 January 2021 as the day the employment ended.
In this regard, the Department notes that on 8 December 2020, Dr Williams submitted her resignation letter, resigning from the service effective from 24 January 2021. The Department states that the plotted roster indicates that Dr Williams applied for recreational leave commencing on 18 January 2021 until her resignation date of 24 January 2021. The Department further states that Dr Williams' recreational leave was not processed by the Department and that Dr Williams was separated from the Service effective from the last day she worked, being 17 January 2021.
Relevantly, the Department submits that it does not dispute that Dr Williams' resignation letter provides that the termination was to be effective from 24 January 2021. Despite this, the Department has calculated the long service leave entitlement on the basis that the employment ended on 17 January 2021.
In her submissions, Dr Williams argues that the period between 17 January 2021 and 24 January 2021 should have been considered by the Department in calculating her long service leave entitlement. Dr Williams states that she received no communication from the Department that that her employment would end on 17 January 2021.
Further to this, Dr Williams disputes the Department's methodology in calculating the period of continuous service to only include days of 'actual work' because annual leave is also credited as service towards long service leave.
The Department accepts that Dr Williams provided written notice that the employment would end on 24 January 2021. This is not in dispute.
The Department did not put before me any evidence in writing or at all that the effective date of termination of the employment was altered from that referred to in Dr Williams' letter of resignation.
I accept that the employment ended on 24 January 2021 and further conclude that is the date upon which, for the purpose of calculating Dr Williams' long service leave entitlement, the employment ended. That is, the employment terminated seven (7) days later than contended by the Respondent.
Conclusion
For the reasons referred to above, I have concluded that the Respondent's approach to recognising leave for the purpose of calculating Dr Williams' entitlement to long service leave was correct in so far as it related to the period of unpaid parental leave and the period of unpaid special leave. I have accepted Dr Williams' contentions with respect to the date upon which the employment terminated.
Accordingly, Dr Williams was employed for a period of six (6) years, ten (10) months and nine (9) days. Consequently, Dr Williams does not have an entitlement to long service leave as she had not completed seven (7) years of continuous service. It follows that the application will be dismissed.
Order
Accordingly, I make the following order:
The application for payment instead of taking long service leave is dismissed.
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