28 August A pressing necessity: Payment of pro rata long service leave August 28, 2018 By Reef Admin NSW Fair Trading 0 In some States and Territories, long service leave legislation provides for a pro rata long service leave payment in certain circumstances upon termination of the employee’s employment. In New South Wales, for example, there’s a pro rata entitlement where an employee has served at least five years but less than 10 years of continuous employment with an employer, and the termination is on account of “illness, incapacity or domestic pressing necessity”. So what constitutes a “pressing necessity”? Unfortunately, there’s no simple answer. Generally speaking though, an employer should ask themselves if resignation is the only reasonable option for the employee in the circumstances. In many circumstances, the cause for the pressing necessity to resign may be due to domestic pressures. The key word is “necessity” and the courts will view it from the employee’s perspective. Previous decisions provide the key criteria to be considered when assessing whether the resignation was due to domestic or other pressing necessity. These criteria are: Was the reason genuinely held by the employee and not simply colourable or a rationalisation? While not the sole reason for resigning, was it the real or motivating reason? Was the reason such that a reasonable person, in the circumstances in which the employee was placed, might have felt compelled to terminate their employment? What would be the consequences if the employee did not take that course of action? Examples of circumstances in which an employee was deemed entitled to pro rata long service leave due to domestic or other pressing necessity include: An employee’s spouse was transferred intrastate and resigned as a consequence An employee resigned to be the primary carer of a child, rather than the child being place in child care The stressful nature of the job, which forced the employee to resign. Jurisdictions other than NSW Similar terms referring to an employee’s resignation due to domestic or other pressing necessity exist in long service leave legislation in Queensland, Tasmania, Northern Territory and the Australian Capital Territory. It could reasonably be expected that courts and tribunals in those jurisdictions would apply the above criteria when considering the “domestic and other pressing necessity” issue. Legislation in Victoria, South Australia and Western Australia provide an entitlement to pro rata payment after completing the specified qualifying period irrespective of the reason for the resignation. Call REEF If you have questions about long service leave, call the REEF Helpline on 1300 616 170. Our team of experienced Workplace Relations Advisors is on hand to help. Related Can an employee cash out their long service leave? It's a common question. REEF often receives calls asking about an employee's ability to cash out an amount of accrued long service leave. But can they? Senior Workplace Relations Advisor Laura Clark explains. Changes to Victorian long service leave Victorian real estate employers should be aware of the new Long Service Leave Act 2018 (Vic). The Act was passed in May and (unless proclaimed to start earlier) will commence operation on 1 November 2018. Changes to annual leave provisions now in play In an important decision by the Fair Work Commission, annual leave provisions in modern awards have been varied to provide greater administrative flexibility. The changes apply from the first pay period on or after 29 July 2016. Managing employee leave applications Do employers have a legal right to require employees to complete a leave application form each time they seek leave? Medical certificates and personal leave policies Can a personal leave policy insist that employees provide a medical certificate as proof of illness or injury? And if it does, is the policy compliant with the Fair Work Act 2009 and modern awards? Parental leave: What to consider when replacing someone It’s an issue all too well known to real estate employers. You have a pregnant employee who is about to head off on unpaid parental leave. Your anxiety levels start to rise. How are you going to maintain your agency’s level of service while they’re gone? Comments are closed.