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Re Lanigan and Brisbane Catholic Education[2016] QIRC 126

Re Lanigan and Brisbane Catholic Education[2016] QIRC 126

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lanigan AND Brisbane Catholic Education [2016] QIRC 126

PARTIES:

Lanigan, Thomas

(Applicant)

AND

Brisbane Catholic Education

(Interested Party)

CASE NO:

EC/2016/253

PROCEEDING:

Application for payment instead of Long Service Leave

DELIVERED ON:

2 December 2016

HEARING DATES:

On the papers

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. Applicant at the time of the lodgement of the application was not a person whom had an entitlement to long service leave.
  2. Application refused.

CATCHWORDS:

INDUSTRIAL RELATIONS APPLICATION - Payment instead of Long Service Leave - Continuity of Service - Entitlement - Applicant has no entitlement - Application refused.

LEGISLATION:

Industrial Relations Act 1999, s 43, s 53, s 71

APPEARANCES:

Nil

Decision

  1. [1]
    An Application was lodged with the Industrial Registrar on 28 November 2016 pursuant to s 53(4) of the Industrial Relations Act 1999 (the Act) by Thomas Lanigan (the Applicant) in which he sought the payment of 55 hours long service payment instead of taking such leave.
  1. [2]
    In material attached to the application, the Applicant stated that:

"I was very disappointed in September 2014 to be told that by getting a payout in 2012, my continuity was broken.  When I had made every effort to get back to supply teaching my last working day of 29th November 2011 before my operation, and my first day back was the 16th March 2012 fitted inside the 3 months rule when the February payment was considered.  I have included my application and follow up correspondence with Catholic Education in 2014.  The other point to mention of relevance was that 'the ten year waiting period' was reduced to seven years in 2012 just after my application to the court."

  1. [3]
    The Brisbane Catholic Education (BCE) Office in correspondence to the Industrial Registry (dated 30 November 2016) provided the following information in terms of the Applicant's entitlement to long service leave:

"As at 18 November 2016 Thomas Patrick Lanigan's actual long service leave balance is nil.  Thomas sustained a break in service between 29 November [2011] and 16 March 2012.  His entitlement to long service leave recommenced at 16 March 2012.  This gives Thomas a pro rata balance of 55 hours as at 18 November 2016."

  1. [4]
    There is no contest that the Applicant ceased working with BCE on 29 November 2011 and was not employed by them again until 16 March 2012 which was a period of more than three months, having the effect of breaking the continuity of service with the employer.
  1. [5]
    Section 71(5)(a) and (b) of the Act:

"(5) An employee's continuity of service with an employer is not broken if -

  1. (a)
    the employee's employment is terminated by the employer or employee; and
  2. (b)
    the employer re-employs the employee within 3 months after the termination."
  1. [6]
    The Applicant's re-engagement on 16 March 2016 restarted his long service entitlement and to be eligible for a payment of long service he must complete at least seven years continuous service pursuant to s 43 of the Act:

"43Entitlement

  1. (1)
    This section applies to all employees, other than seasonal employees.
  1. (2)
    An employee is entitled to long service leave on full pay of -
  1. (a)
    for the first 10 years continuous service - 8.6667 weeks;
  2. (b)
    if the employee has completed at least a further 5 years continuous service - another period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
  1. (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."
  1. [7]
    For s 53 of the Act to be enlivened to allow an employee to be paid for all or part of an entitlement to long service leave instead of taking such leave an entitlement must exist in the first instance.

"53 Payment instead of long service leave

  1. (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 if subsection (2) or (3) applies.
  1. (2)
    If the relevant industrial instrument provides for the employee to be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made, in accordance with the industrial instrument, if the employee and employer agree by a signed agreement.
  1. (3)
    If no industrial instrument provides for the employee to be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made only if the payment is ordered by the commission on application by the employee.
  1. (4)
    The commission may order the payment only if satisfied the payment should be made -
  1. (a)
    on compassionate grounds; or
  1. (b)
    on the ground of financial hardship."

Finding

  1. [8]
    The Commission considered the matter on the papers and from the material before the Commission it has been established on the requisite standard of proof that the Applicant at the time of the lodgement of the application was not a person whom had an entitlement to long service leave therefore the application for payment in accordance with s 53(4) of the Act is refused.
  1. [9]
    I order accordingly.
Close

Editorial Notes

  • Published Case Name:

    Lanigan and Brisbane Catholic Education

  • Shortened Case Name:

    Re Lanigan and Brisbane Catholic Education

  • MNC:

    [2016] QIRC 126

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    02 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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