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  4. Simmons v Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health - [2021] QIRC 242

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Simmons v Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health[2021] QIRC 242

Simmons v Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health[2021] QIRC 242

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Simmons v Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health [2021] QIRC 242

PARTIES:

Simmons, Claire 

(Applicant)

v

Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health

(Respondent)

CASE NO.:

B/2021/2

PROCEEDING:

Recovery of pro-rata long service leave

DELIVERED ON:

14 July 2021

MEMBER:

HEARD AT:

Power IC

On the papers

ORDERS:

  1. The Application is granted.
  1. The Respondent is to pay Claire Simmons the gross sum of $13,299.50, being her entitlement to proportionate long service leave, within 28 days of this order.

CATCHWORDS:

INDUSTRIAL LAW – RECOVERY OF PRO RATA LONG SERVICE LEAVE – Employee resigned from employment – whether the employee is entitled to proportionate long service leave – whether employee terminated employment because of domestic or other pressing necessity

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 95 and 580

CASES:

Anantapadma v Infosys Limited (2020) QIRC 190

Crennan v Oliver Furniture Pty Ltd (1962) 17 IIB 799

Franks v Kembla Equipment Co Pty Ltd (1969) AILR 55

Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2018] ICQ 001

O'Keefe v Queensland Diagnostic Imaging Pty Ltd [2009] 192 QGIG 93

Vermeer v Montague Fresh Qld Pty Ltd [2007] 185 QGIG 220

Melanie Saxby, Department of Justice and Attorney-General AND Southern Downs Security Pty Ltd [2010] QIRC 40

Reasons for Decision

  1. [1]
    Ms Claire Simmons ('the Applicant') filed an application seeking proportionate payment of long service leave pursuant to s 95 of the Industrial Relations Act 2016 (Qld) ('the Act'). The Applicant submits that her resignation from employment with Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health ('the Respondent') occurred because of domestic or other pressing necessity.
  1. [2]
    The Applicant was in continuous employment with the Respondent for a total period of nine years and six months, having commenced on 12 January 2009 until her resignation took effect on 24 July 2018. The Applicant submits that she is entitled to payment of pro-rata long service leave in accordance with s 95(4)(b)(ii) of the Act. This section provides for an entitlement of proportionate payment to an employee with more than seven but less than ten years' continuous service where the employee terminates their employment due to a domestic or other pressing necessity.

Legislative Provisions

  1. [3]
    The Act sets out the entitlement for payment of long service leave for periods of ten years or more, and for proportionate payment for periods of continuous service where an employee has completed at least seven years continuous service where other specific conditions are met.
  1. [4]
    Section 95 of the Act provides:

95Entitlement—employees other than seasonal employees

  1. (1)
    This section applies to an employee, other than a seasonal employee.

Note—

For provisions applicable to seasonal employees, see subdivisions 7 and 8.

  1. (2)
    The employee is entitled to long service leave, on full pay, of—
  1. (a)
    if the employee has completed 10 years continuous service—8.6667 weeks; and
  1. (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.
  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. (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—
  1. (a)
    the employee’s service is terminated because of the employee’s death; or
  1. (b)
    the employee terminates the service because of—
  1. (i)
    the employee’s illness; or
  1. (ii)
    a domestic or other pressing necessity; or

…

Applicant's submissions

  1. [5]
    In compliance with a Directions Order issued by the Commission, the Applicant filed submissions in support of her claim. In summary, the Applicant submits that:
  • the Act does not expressly require the Applicant to make the Respondent aware of her domestic necessity. In any event, the Applicant made no secret of her challenging domestic circumstances during her employment with the Respondent;
  • throughout 2018, the Applicant experienced a deterioration in her domestic circumstances because her spouse's employment became unstable, along with ill health and associated exhaustion. The Applicant believed the need for her to be more available in the home to support her spouse was genuine and felt there was a growing and urgent need for her to increase her responsibility for the household;
  • the Applicant attempted to renegotiate her employment contract with the Respondent, but the request was refused;
  • the Applicant's domestic circumstances at the time of her resignation were such that she felt she had no choice but to resign from her employment with the Respondent and seek alternate employment;
  • at the time of resignation, the Applicant had already successfully obtained employment closer to home, significantly reducing her commute and the associated financial burden, simultaneously allowing greater availability to attend to her domestic duties;[1]
  • the resignation was not due to the Applicant seeking to work elsewhere for aspirational reasons as in the finding by Deputy President Merrell in Anantapadma v Infosys Limited;[2]
  • the Applicant sought additional availability at home in order to assume primary responsibility for the care of her young child and provide reprieve for her spouse to recover from a severe illness and associated fatigue; and
  • the motivation to resign her employment with the Respondent was because of her domestic necessity and the genuine view that she had no real choice in the matter. The finding in Franks v Kembla Equipment Co Pty Ltd,[3] makes clear an employee forced to leave work to take care of a sick spouse or take care of children meets the intended definition of 'domestic necessity'.
  1. [6]
    The Applicant further filed and submitted the affidavits of her spouse, Mr Travis Simmons and mother-in-law, Ms Muriel Simmons in support of her submissions.

Respondent's submissions

  1. [7]
    In compliance with the Directions Order, the Respondent filed submissions in response to the Applicant's submissions in the form of a chronology with accompanying attachments. In summary, the Respondent submits that:
  • on 12 January 2009, the Applicant commenced employment with the Respondent as a Registered Nurse at The Wesley Hospital;
  • on 13 June 2018, the Applicant was issued with a letter regarding an allegation of insufficient patient care;
  • on 13 June 2018, the Applicant emailed the Respondent, requesting to take pro-rata long service leave in accordance with clause 7.6.5 of the UnitingCare Health & QNU Nurses Enterprise Agreement 2015-2018, stating:

My manager is aware I have taken on a second job closer to home. As an employee changing jobs to lessen travel expenses due to a difficult financial situation, I therefore request access to all of my pro rata long service leave.

  • on 25 June 2018, the Respondent emailed the Applicant, stating:

I understand that you wish to apply for pro rata long service leave. For this to be considered can you please fill in a leave request form and provide me with a letter outlining the rationale for your request i.e. why you believe you would be entitled to accessing LSL.

  • on 3 July 2018, the Respondent wrote to Applicant, stating:

I confirm that at this time I am unable to approve this request. However if you are able to provide further information in relation to your "difficult financial situation" I can consider your request further.

  • on 4 July 2018, the Applicant emailed the Respondent to reconsider with no further documentation provided as requested as to support her claim of financial hardship;
  • on 11 July 2018, the Respondent wrote to the Applicant and advised the allegation outlined in the allegation letter of 13 June 2018 was unable to be substantiated and reiterated the Respondent's expectations regarding the standard of patient care to be provided;
  • on 11 July 2018, the Applicant emailed the Respondent, stating:

To Whom It May Concern, I wish to give you my two weeks resignation notice as of today Wednesday 11th July, 2018. My last day will be Tuesday 24th July, 2018.

  • on 24 July 2018, the Applicant's employment ended;
  • on 7 August 2018, ACE Solicitors wrote to the Respondent requesting the Applicant be paid pro rata long service leave, attaching the following:

•  Two child care fee statements – statements do not state anywhere that the amount is overdue

•  One letter from Allianz in February 2018 stating insufficient funds on the direct debit account, 4 months prior to application for pro rata long service leave being made

•  Medical certificates for her partner being admitted to hospital on single occasions on the 8 February 2017, 7 April 2017, and 20 March 2018.

  • on 29 August 2018, the Respondent wrote to ACE Solicitors, stating:

In order to assess her eligibility to take leave, UnitingCare Health asked Ms Smith (now Ms Simmons) to provide a reason and appropriate evidence to support her eligibility. Prior to UnitingCare Health having an opportunity to fully consider her application along with any supporting documentation, she resigned from her employment.

  • on 30 July 2020, the Queensland Nurses and Midwives' Union of Employees ('QNMU') wrote to the Respondent regarding proportionate payment of long service leave for the Applicant;
  • on 5 August 2020, the Respondent wrote to QNMU, stating:

Ms Smith was informed of a denial of her application on 3 July 2018 and acknowledged this communication by reply email. The communication directed Ms Smith to provide any further documentation regarding her financial hardship if she wanted us to consider the application further. On 4 July 2018 Mr Ron Patterson received an email UnitingCare Health to reconsider with no further documentation provided as requested as to support her financial hardship. Our records indicate that upon the resignation of Ms Smith there was nothing noted on her resignation about any financial hardship until after her departure and the subsequent application that followed. I confirm that I am unable to approve this request based on the information provided.

  • on 13 November 2020, QNMU wrote to the Respondent, attaching a sworn affidavit of the Applicant, stating:

Ms Simmons was experiencing significant difficulties in the home including:

•  A very ill spouse who was unemployed;

•  Suddenly becoming the sole breadwinner as well as being required to take on the majority of domestic responsibilities; and

•  Challenges associated with managing the case of a small child.

These pressing domestic circumstances necessitated Ms Simmons’s resigning from her position.

  • on 8 December 2020, the Respondent wrote to QNMU and advised it does not resile from its previous decision.
  1. [8]
    The Respondent submits that evidence was sought from the Applicant's decision to resign because of a pressing necessity within the meaning of s 95(4)(b)(ii) of the Act, but was unable to confirm that the reason for resignation was because of a pressing necessity. However, the Respondent does not oppose the Applicant's application for proportionate payment of long service leave if the Commission determines that the Applicant's decision to resign from the Respondent was because of a pressing necessity.

Applicant's submissions in reply

  1. [9]
    The Applicant, in compliance with the Directions Order, filed submissions in response to the Respondent's submissions. In summary, the Applicant submits that:
  • the unsubstantiated allegation was not the basis of the Applicant's resignation and was because of her escalating domestic need, amounting to domestic necessity, in the second half of 2018;
  • access has been sought with respect to her entitlement of pro rata long service leave on more than one occasion, including:
  1. (a)
    at the time of her resignation;
  1. (b)
    as assisted by ACE Solicitors in 2017; and
  1. (c)
    as part of this current action;
  • the Respondent repeatedly refused to accept the Applicant's claims of financial distress or domestic necessity despite having direct knowledge of her difficulties;
  • the Applicant's evidence clearly demonstrates accounts to be 'outstanding', and/or unpaid due to insufficient funds being in her accounts. Notwithstanding the financial distress experienced by the Applicant, the basis of this claim is domestic necessity;
  • further knowledge is demonstrated by the Applicant being granted access to 108 hours of long service leave to use in lieu of carer's leave (the balance of which had been exhausted), so she could be with her hospitalised spouse in March of 2017. The Respondent notes awareness of this period of hospitalisation and two additional hospital admissions of the Applicant's spouse; and
  • the Respondent has not challenged the assertion they were aware of the Applicant's challenging domestic circumstances in the lead up to her resignation in 2018.

Consideration

  1. [10]
    The question for determination is whether the Applicant terminated her employment because of a domestic or other pressing necessity. There is no dispute between the parties that the Applicant had been employed for the minimum of seven years' continuous service prior to her termination.
  1. [11]
    The background to this matter involved the Applicant requesting to access her pro rata long service leave prior to the termination of her employment. The reason provided by the Applicant in her request was due to 'a difficult financial situation'. This request was declined after the Respondent was not provided with further information regarding the Applicant's situation. The Applicant was also advised of an allegation made against her in the workplace, however, on 11 July 2018 the Respondent advised that the allegation was not substantiated. On the same date, 11 July 2018, the Applicant gave two weeks' notice of her resignation. There is no evidence that the circumstances surrounding the allegation played any role in the Applicant's decision to terminate her employment.
  1. [12]
    The Respondent noted that "there was nothing noted on her resignation about any financial hardship until after her departure" in their correspondence to the QNMU dated 5 August 2020. The relevance of reasons given by an employee upon termination has been considered in a number of cases. In Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd,[4] the court determined:

If an employee resigns due to illness, but tells their employer they have done so to find a new line of work, the cause of the termination is the illness. Similarly, where an employee claims to have been suffering an illness, but is found to be healthy, that employee has not terminated their employment because of an illness. They may honestly believe that illness was the reason for their termination, but that will not render them eligible under the Act.[5]

  1. [13]
    Further, in the case of O'Keefe v Queensland Diagnostic Imaging Pty Ltd,[6] Commissioner Asbury states that:

The failure of an employee to discuss issues which are later said to entitle the employee to payment for proportionate long service leave under s. 43(4)(b)(i) or (ii) may be relevant to whether or not those issues were genuine. However, the fact that an employee does not discuss an issue with his or her manager is not determinative. Issues which lead an employee to terminate employment because of domestic or other pressing necessity, or injury or illness, may be sensitive issues which that employee is reluctant or even embarrassed to raise with a manager. This does not make the issue which causes the employee to resign any less genuine.

  1. [14]
    As outlined in the cases mentioned above, an employee's statements to their employer is not determinative of their entitlement because they alone cannot prove the cause of the employee's termination. The fact that the Applicant in this matter did not give the Respondent a reason at the time of her termination does not necessarily mean that the reason was not due to a 'domestic or other pressing necessity'.
  1. [15]
    In Vermeer v Montague Fresh Qld Pty Ltd,[7] Commissioner Brown adopted the definition of "domestic" as an issue relating to the home, household, or household affairs, and a "pressing" issue as being one that is urgent and demands immediate attention.[8] An application of this definition would suggest that circumstances involving an employee's ill partner who required support along with becoming the primary carer of a child would reasonably be considered as relating to the household affairs requiring immediate attention.
  1. [16]
    The Applicant's recent history indicates that she was experiencing significant difficulties in the household following her spouse becoming ill. The Applicant submits that she subsequently became the sole breadwinner as well as taking on the majority of domestic responsibilities. The Applicant accessed long service leave in lieu of carer's leave so she could be with her hospitalised husband in March 2017. The Applicant's husband was admitted to hospital on two additional occasions in the period prior to the Applicant's termination.
  1. [17]
    Immediately preceding her resignation, the Applicant attempted to renegotiate her employment contract with the Respondent as a consequence of her need to be more available in the home to support her husband and look after her child. This attempt was not successful. 
  1. [18]
    In her affidavit, the Applicant stated the following:

It was my responsibility to my family and the increasingly urgent need for me to be available in the household which led me to my final decision to resign from my employment with the Respondent.

  1. [19]
    I accept that the definition of 'domestic necessity' would reasonably include an employee terminating their employment in order to take care of a sick spouse or to take care of children.
  1. [20]
    The Applicant obtained employment closer to her home in order to reduce the financial burden of her previous commute and to allow her greater availability to attend to her domestic duties. This allowed her to assume primary responsibility for the care of her child and support for her husband who was recovering from an illness. I accept that the Applicant was not seeking to work elsewhere for aspirational reasons, but rather due to a need to attend to her family's changed circumstances.
  1. [21]
    The Applicant's actions in taking 108 hours of long service leave to assist her husband prior to her termination is evidence that the Applicant's domestic situation had become challenging. The affidavits filed by the Applicant's husband and mother-in-law confirm that the husband had suffered a significant illness. I accept that the Applicant resigned from her employment to support her ill husband and provide caregiving duties for her child. Consequently, I accept that the Applicant resigned from her employment due to a domestic pressing necessity.
  1. [22]
    The parties initially submitted different amounts with respect to the Applicant's long service leave entitlement, however, it was subsequently agreed between the parties that the entitlement amount was 306 hours, equating to an amount of $13,299.50.

Orders

  1. [23]
    I am satisfied that this application meets the requirements of s 95(4)(b)(ii) of the Act and therefore make the following orders:
  1. The Application is granted.
  1. The Respondent is to pay Claire Simmons the gross sum of $13,299.50, being her entitlement to proportionate long service leave, within 28 days of this order.

Footnotes

[1] citing Crennan v Oliver Furniture Pty Ltd (1962) 17 IIB 799.

[2] (2020) QIRC 190.

[3] (1969) AILR 55.

[4] [2018] ICQ 001.

[5] Ibid [18].

[6] [2009] 192 QGIG 93.

[7] [2007] 185 QGIG 220.

[8] See also Melanie Saxby, Department of Justice and Attorney-General and Southern Downs Security Pty Ltd [2010] QIRC 40.

Close

Editorial Notes

  • Published Case Name:

    Simmons v Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health

  • Shortened Case Name:

    Simmons v Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Health

  • MNC:

    [2021] QIRC 242

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    14 Jul 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Anantapadma v Infosys Limited [2020] QIRC 190
2 citations
Jump To
Cite 1 - [2020] QIRC 190
Cite 2 - [2020] QIRC 190
Crennan v Oliver Furniture Pty Ltd (1962) 17 IIB 799
2 citations
Jump To
Cite 1 - (1962) 17 IIB 799
Cite 2 - (1962) 17 IIB 799
Franks v Kembla Equipment Co. (1969) AILR 55
2 citations
Jump To
Cite 1 - (1969) AILR 55
Cite 2 - (1969) AILR 55
O'Keefe v Queensland Diagnostic Imaging Pty Ltd (2009) 192 QGIG 93
2 citations
Jump To
Cite 1 - (2009) 192 QGIG 93
Cite 2 - (2009) 192 QGIG 93
Robert John Vermeer v Montague Fresh Qld Pty Ltd (2007) 185 QGIG 220
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 220
Cite 2 - (2007) 185 QGIG 220
Saxby, Department of Justice and Attorney-General v Southern Downs Security Pty Ltd [2010] QIRC 40
2 citations
Jump To
Cite 1 - [2010] QIRC 40
Cite 2 - [2010] QIRC 40
Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2018] ICQ 1
3 citations
Jump To
Cite 1 - [2018] ICQ 1
Cite 2 - [2018] ICQ 1
Cite 3 - [2018] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Hoveydai v Nixon Pacific Pty Ltd [2024] QIRC 1482 citations
Mann v Seafarms Queensland Pty Ltd [2025] QIRC 1782 citations
1

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