201511.03
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Non Payment of Long Service Leave due to Employee’s resignation on grounds of inadequate child care

by in Commercial Law, Employment Law, ICT Law, Startup & New Business

An employee is entitled to 8.67 weeks of paid long service leave when an employee has been employed by the same employer for a period of ten (10) consecutive years of employment. An employee is entitled to a pro-rata entitlement after five (5) years of continuous service, if the employee resigns as a result of illness, incapacity or a domestic or other pressing necessity.

In the case of Toni O’Keefe v Queensland Diagnostic Imaging Pty Ltd [2009] QIRComm, Ms O’Keefe resigned from her employment after five (5) years of continuous service because she was unable to locate adequate child care for her children and she was also the carer of her mother who had been diagnosed with cancer. When Ms O’Keefe tried to recover her pro-rata long service leave entitlements from her employer, they denied her request for payment.

In this case it was held that there was sufficient evidence to demonstrate that her resignation of employment was due to a domestic or other pressing necessity and therefore Queensland Diagnostic Imaging was ordered to pay Ms O’Keefe her pro-rata long service leave entitlements.

Tips

  • If you are an employee who is placed in a position where you have to resign for personal reasons, you should seek legal advice prior to same to ensure you have sufficient evidence to demonstrate that your personal reasons will be sufficient to obtain your pro-rata long service leave.
  • If you are an employer calculating a long serving employee’s final payment following his or her resignation, you should seek legal advice on whether pro-rata long service leave is payable to avoid breaching your industrial obligations.

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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.