Upon the continuous service of 10 years a worker in most circumstances is able to qualify for long service leave. It is worth noting however, that in certain situations an employee may be able to qualify for long service leave on a pro rata basis before the expiry of obtaining 10 years continued service.
The Long Service Leave Act provides that an employer must pay an employee (with more than five years but less than 10 years’ service) their pro rata long service leave entitlements where the employee resigns from their employment “on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker.”
To be able to satisfy a claim for pro rata long service leave a worker must be able to satisfy the following;
- Was the reason claimed for termination one which fell within the section?
- Was the reason generally held by the worker not simply colourable or a rationalisation?
- Although the reason claimed may not be the sole ground which led the worker in his decision to terminate, was it the real and motivating reason?
- Was the reason such that a reasonable person in the circumstances in which the worker found himself/herself placed might have felt compelled to terminate his employment?
When considering whether or not an employee is entitled to a pro rata long service leave after five years will be fact-specific. For example the Supreme Court has recognised that uncertainty regarding the future of one’s employment and the need for security of employment both for an employee’s professional reasons, and to support their family, is a circumstance which can be taken into account when determining whether or not an employee resigned on account of “pressing necessity”.
Whilst less than 10 years, pro rata long service leave entitlements can be significant. Whether you’re an employee or an employer it is worth considering whether or not the circumstances give rise to a payment or claim for pro rata long service leave. At Everingham Solomon’s we can provide you that advice, because Helping You is Our Business.
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