Seeking Advice on Long Service Leave

LVeganShark on 10/05/2018 - 23:23

Hey Guys,

Need some advice on a bit complex situation with my employer (ex).

So, I worked for this company for 9 years and 11 months in NSW. I resigned last week with 1 month notice as per my contract of employment ( I timed it so I could complete my 10 years of service with them to take the long service leave). Unfortunately, my employer terminated my contract on the same day of my resignation and paid off my 1 month salary in advance. I asked them if I was going get my long service leave payment and the answer was 'No'.

I have contacted FairWork Commission and they advised me to contact a lawyer.

If i decide to engage a lawyer, I know it might cost me a fortune and still not get anything from the employer. Before I submit my complain with FairWork or engage a lawyer, I would like to know where I stand in this case. Any suggestions??

Education & Work Long Service Leave

Comments

  • Some Human on 10/05/2018 - 23:27
    +10

    I thought long service was 7 years Pro rata

    • VeganShark on 10/05/2018 - 23:32
      +3

      Not in NSW. I think that's only in VIC. In NSW, you have to wait until you hit 10 years

      • indium on 10/05/2018 - 23:44
        +10

        Maybe it's more complicated but you should be paid pro rata after minimum of 5 years in NSW if you were terminated.

        Is there a long service leave entitlement for less than ten years of service?

        Under some circumstances a worker who has completed five years (but less than ten years) of service may be entitled to a long service pro-rata payment if he or she:
        resigns as a result of illness, incapacity, domestic or other pressing necessity;
        or
        is dismissed for any reason except serious and wilful misconduct;
        or
        dies.

        http://www.industrialrelations.nsw.gov.au/oirwww/FAQs.page

        • VeganShark on 10/05/2018 - 23:57

          I'm getting a bit of hope by your answer. So, Now I have 2 scenarios:

          • If I was terminated on the day of my of my resignation, I should get LSL on pro-rata basis
          • If I'm still an employee of the company (Even though they have paid me for 4 weeks of Salary in advance), I should get my full LSL.
        • CheapSticks on 12/05/2018 - 20:23
          -3

          @VeganShark: No prorata in NSW. Have to do 10yrs min

        • Slippery Fish on 13/05/2018 - 08:46
          +3

          @VeganShark: your some kind of special to not see that coming, hey I resign as soon as I get lsl. Cash me outside.

          Boss: pfft go f yourself, no 10 years for you!

        • BexForHeadache on 13/05/2018 - 21:40

          @Slippery Fish:

          The company is equally as 'special' to think they will get away with it.

        • purplelady on 14/05/2018 - 08:40
          +1

          @CheapSticks: Hmmm…. yes and no. In NSW, if you have worked for 5 or 7 years (I can't remember which one) and you're then fired without warning etc, then you can get LSL prorata. But if you quit, then no. In terms of OP's case, I'm not sure if that's considered fired :/

        • [Deactivated] on 14/05/2018 - 15:29

          @Slippery Fish:

          You're* lol!!

        • ITveteran on 15/05/2018 - 00:12

          @CheapSticks: You are wrong. Phew is right. Interesting Fairworks rejected to step in. Maybe OP should report to Ombudsman regarding FW's inactivity. Lazy government!

        • [Deactivated] on 16/05/2018 - 10:14

          @purplelady: If you're unfairly dismissed you can get a lot of things. If you're fairly dismissed (even made redundant) in QLD/NSW you get nothing until 10 years (though the amount of redundancy pay does take LSL into account, it's still not LSL - your redundancy pay actually goes down after 10 years taking this into account). If you resign for any reason other than pressing need / terminal illness etc you also get nothing until you have been 'at your desk' for 10 years plus any unpaid periods.

      • cameldownunder on 14/05/2018 - 11:02

        Question: Why did you have to resign? I mean, so close, another 1 month after 120 month?
        NSW is pro rata, but it could be that you still have to be employed, e.g. on their books, which you are.
        I think it does not matter if you are going in to the office or not,

        • cameldownunder on 16/05/2018 - 10:40
          +1

          I asked my wife, she is in HR, and she thinks as it stands your chances are not good. Did OP specifically say, last working day is ….
          That is the only straw to hang on: the company should have consulted you, if paying you out is acceptable, she says they would need your consent. Good Luck, in your new job too.
          Let's never forget: Our employer is NOT our friend, nor is the BOSS, no matter how "friendly" they are. As long as it costs them nothing, they are the nicest people in the world, as soon is it costs them money, they are ruthless wolfs.

    • Donaldhump on 10/05/2018 - 23:50
      +1

      Only if made redundant , or possibly fired

    • Neenie Beamer on 10/05/2018 - 23:59
      -3

      It's 7 years pro rata here in QLD too btw

      • [Deactivated] on 13/05/2018 - 16:25
        +3

        No it's not. If you resign before 10 years in QLD you get nothing unless you resign for some very specific circumstances (eg, terminal illness).

        Some companies in QLD choose to allow you to take it after 7 years, provided you've used your annual leave and come back to the company for 3-6 months afterwards in order to stop people doing what OP did.

        If you're terminated for a valid reason, you also get nothing.

        If you're made redundant, the amount of redundancy pay you're entitled to decreases at 10 years with the expectation that you're now entitled to LSL (in essence the redundancy pay takes into account your LSL balance a little). But you still don't get any LSL officially.

        No in QLD, the only way you're entitled to be paid out any LSL is to work somewhere for 10 years.

        I couldn't say which way it goes in OP's predicament, but I wouldn't be surprised if the company isn't in the clear here.

        • MetaphorOZB on 14/05/2018 - 12:14

          My understanding is the same as yours. I don't think the employer has done anything wrong by Fair Work standards.

          I don't know why OP wouldn't have looked into this more thoroughly before quitting, or simply just worked the extra month, instead of making assumptions.

    • Ugly on 11/05/2018 - 08:56
      +6

      I think in NSW pro-rata is only applicable if you are made redundant, not if you quit.

    • TigerWoops on 13/05/2018 - 05:58

      I am working nearly 8 years in VIC but didnt get Pro rata. I think it is 10 years.

  • askme69 on 10/05/2018 - 23:28
    +49

    Was 1 month going to kill you.

    I could access my long service after 7 years. NSW state government.

    • VeganShark on 10/05/2018 - 23:37
      +1

      Actually, I got a really nice opportunity from another company. They waited for me for almost 4 months, I couldn't ask for anymore time. That's why I resigned with 4 weeks notice so I could complete my 10 years and then start with the new company.

      • Donaldhump on 10/05/2018 - 23:51
        +5

        Could you have taken leave instead, started new job.

        • VeganShark on 11/05/2018 - 00:02
          +3

          If I had put a 4 weeks leave notice and then resign, I would have to wait another 4 weeks before i could start my new job (4 weeks notice is the requirement as per contract). The only reason they terminated my contract so that they don't have to pay me my LSL.

        • Donaldhump on 11/05/2018 - 08:21
          +10

          @VeganShark: no you can go on leave for 4 weeks, and resign on day 1 of your leave.

        • Jelena1710 on 12/05/2018 - 19:10
          +4

          @VeganShark:

          If they terminated your contract like you state there should be severance pay plus paymeny of entitlements. What was their reason for termination immediately? Did you agree to it? What does your contractstate? Are you coveredby any EBA or Award?

        • dheywood on 14/05/2018 - 22:03
          +2

          @Jelena1710: He wasn't terminated, he resigned. They opted to pay out his notice period rather than have him work it. Pretty sure it is in their right to do so form the research I did 12-18 months ago.

  • tabz on 10/05/2018 - 23:45
    +8

    Maybe have a read of the NSW Long Service Leave Act 1955.

    Taken from Industrial Relations:

    The Act also provides for a pro-rata entitlement after five years, if the employee resigns as a result of:

    • illness,
    • incapacity or
    • domestic or other pressing necessity.

    If an employee resigns for one of the above reasons they need to advise the employer in writing at the time of giving notice.

    The Act also provides for a pro-rata entitlement after five years, if an employee’s services have been terminated by the employer for any reason other than serious and wilful misconduct, or if the employee dies.

    So my understanding is if you were terminated, you are entitled to the long service leave pro-rata'd.

    • Wibbleman on 11/05/2018 - 01:05
      +1

      Wasn’t terminated. They resigned

      • VeganShark on 11/05/2018 - 01:34
        +2

        yeah..Resigned with 4 weeks notice ..Which means you should have the rights to be the employee of the company for 4 weeks…The employer has right to ask me to work for 4 weeks when i submitted my resignation. As an employee,I should have the same rights….But don't know..may be Im wrong.

        • R-Man on 11/05/2018 - 10:22
          +31

          hi mate sorry to hear about this situation.

          I believe the employer has to take your "last day of employment" as your date of resignation + 4 weeks

          the employer can choose to pay you 4 weeks salary and tell you to stay home BUT they must pay out leave entitlements as at your last day of employment.

          What i mean is, even if you are sitting at home with 1 months pay twiddling your thumbs, you are still "employed" until the 4 weeks are up. so you bloody well should get your LSL and annual leave at 10 years and 0 months.

        • VeganShark on 11/05/2018 - 11:04

          That's exactly my point….I sent an email to HR manager and he said i am not qualified for LSL Pro-rated.

          May be I should wait until I hit 10 years (on 25th May) and then take actions.

        • R-Man on 11/05/2018 - 11:11
          +20

          @VeganShark: im no lawyer but just my ideas, I would ask HR this:

          1. Why am I not qualified?
          2. HR will admit "because we terminated you at 9 years 11 months"
          3. You tell them they terminated you too early because according to your resignation notice it should be as at 10 years 0 months
          4. You may also mention this is unfair dismissal otherwise

          Getting their mistake in writing could be helpful. Keep us up to date on this shit storm!

        • Harold Halfprice on 12/05/2018 - 21:49
          +3

          Which means you should have the rights to be the employee of the company for 4 weeks

          As far as I'm aware, that is incorrect. They can terminate your contract on the spot - and simply pay you for the next four weeks instead. You aren't entitled to be an employee for 4 weeks.

          I have read several accounts of this being the case (at least in other countries), but it's also in my employment contract. Can't remember if the clause stated that they needed a valid reason - such as me taking employment with a competitor, or whether they could regardless.

          However, I'd try fight it either way if I were you

        • goraygo on 13/05/2018 - 10:57
          +2

          @R-Man: that’s not the case. The employer terminated him and gave him 4 weeks pay. That means termination date is 4 weeks short of 10 years.

          The 4 weeks pay does not necessary mean you are employed for 4 more weeks, it is the company prefer you gone and fulfill the legal requirement of 4 weeks notice.

          You are still in effect terminated the date they tell you to go.

        • mgsydney on 13/05/2018 - 13:59
          +5

          @goraygo:

          Whilst technically correct, it also strongly suggests an active attempt to circumvent paying out a substantial further LSL entitlement. For an average wage earner thats around $15k.

          From Fair Work Ombudsman:

          "For employees:
          If you’ve lost your job, contact the Fair Work Commission (the Commission) first if you think you were sacked because of:

          a reason that is harsh, unjust or unreasonable

          You have 21 days starting from the day after you were dismissed to lodge an application with the Fair Work Commission. Check the information at the Commission website to find out if you can apply for:

          Put your application in ASAP. Nothing to lose.

        • R-Man on 14/05/2018 - 10:27

          @goraygo: shit mate, that does makes sense :(

        • mezje on 14/05/2018 - 13:51

          This is exactly as I see it, OP please keep updated so we can see sweet justice.

        • Serapis on 14/05/2018 - 20:59

          @mgsydney: Has nothing to do with Fair Work Commission as they are a Commonwealth Gov't body while the OP's LSL comes from state law…

          Go to IR NSW - industrialrelations.nsw.gov.au

        • chriise on 14/05/2018 - 23:15

          @goraygo: yes but if OP was 'terminated' rather than seeing out their notice, then wouldn't OP qualify for pro-rata LSL as per the 5 year termination rule?

        • ITveteran on 15/05/2018 - 00:28

          @goraygo: If OP had specified the quit day in the resignation letter (4 weeks away), then this becomes a dismissal instead of resignation. OP should then be entitled with LSL.

        • [Deactivated] on 15/05/2018 - 14:19
          +1

          @ITveteran: Negative. Legally your employment can be ended by your employer at any time after you have given notice to resign, regardless of what that date is, if that date is 4 weeks, 6 weeks or 6 months in the future. If you have told them in writing you INTEND to resign they can immediately march you out the door and the only thing they owe you is the notice period in pay, without any leave accruals that would have occurred if you had stayed.

          Basically, the law sees it that employers may not want employees who no longer have a motivation to keep working for the employer / or keep their information confidential / treat customers nicely etc around. And they're entitled not to. When you give notice in writing that's the maximum date which YOU have to stay without incurring a penalty. So the requirement of the notice period when you quit is solely for the employers benefit, not yours in any way.

  • dcep on 11/05/2018 - 00:01
    +2

    not sure if that's called terminate

    your contract prolly says 1 month notice with employer's choice of waiving the period by paying out 1 month salary in advance

    • VeganShark on 11/05/2018 - 00:09

      I don't think the clause is on the contract…But guess what..I don't even have a copy of my contract of employment :( ..and not sure if I have rights to ask for a copy now that I have resigned from the company.

      • Randxyz123 on 11/05/2018 - 00:14
        +2

        Of course you do. Email HR first thing tomorrow and ask for one. Did you ever have a copy ?

        Mine is still under “offers” on the careers page for My company.

        • VeganShark on 11/05/2018 - 00:27

          Thanks..I will send an email in the morning asking for a copy.

          They use ADP Payroll and all I can access now is my past payslips and group certificate.

        • Splashtash on 15/05/2018 - 12:02

          @VeganShark:
          I don't want to lose my train of thought and I haven't read further. I would have asked at this point for a copy of your contract and hinted/told them you also have one and you want to confirm the same one on file so they don't change it somehow if they really wanted to. Don't trust people.

    • R-Man on 11/05/2018 - 11:16
      +1

      Even if they pay 1 month in advance, its other entitlements such as LSL and annual leave should be paid as at termination date

      (which is 4 weeks after resignation date in this case)

      • mgsydney on 13/05/2018 - 14:01
        +3

        Yep correct:

        "If the employer decides to tell the employee to leave early and pay them in lieu of notice, they need to pay the full notice period that applies for dismissing an employee. Any time the employee has already worked during the resignation notice period doesn’t count.

        The amount paid to the employee must equal the full amount the employee would have been paid if they worked the full notice period. This includes:

        incentive-based payments and bonuses
        loadings
        monetary allowances
        overtime
        penalty rates
        any other separately identifiable amounts."

        • mgsydney on 13/05/2018 - 17:23
          +1

          Sorry, copy/paste above is from the Fair Work Ombusdman - who you'd need to go through if you lodge an unfair dismissal complaint (within 21 days!!)

        • [Deactivated] on 15/05/2018 - 14:25
          +1

          Note it says after that, it doesn't include annual leave accruals, and by inference, LSL accruals either.

          There's no such thing as a termination date when you resign, your resignation date is the date you give notice and that can be the last day of your employment. The employer must pay you what you would have earned had you kept working, hence the above, but they don't need to accrue any leave for you, so financially you will come off very slightly worse than had you kept working. For most people this is a bargain, free 4 weeks paid leave! But if you're trying to inch over the LSL threshold, you'll lose, unfortunately.

          At a substantial reputational cost, you could resign with no notice after working at your desk for 10 years + any unpaid leave periods) and get 8.667 weeks (NSW/QLD) minus the 4 weeks you may have to forfeit for not giving notice. But that's only putting you marginally better off than this.

  • Hardlyworkin on 11/05/2018 - 07:16
    +5

    So from what you have said your employment was ended by your employer as they took ownership of it ending. It now depends if your entitlement to LSL in under the NSW state act (most likely) or a federal award or agreement. The FWO (not the FWC) should be able to confirm if your LSL comes from the state or not. Then your argument is your employer ended the employment relationship - if it was up to you it would have continued, albeit for only 4 more weeks.

    • [Deactivated] on 13/05/2018 - 10:32
      +2

      This is the correct advice. As well as contacting the FairWork Obudsman the OP should contact NSW IR and follow their dispute advice.
      If either FWO or NSW IR dispute resolution doesn’t work you can file in the small claims tribunal to keep costs down.

    • Serapis on 14/05/2018 - 21:03

      Not FWO as their website refers you straight to NSW IR:

      https://www.fairwork.gov.au/leave/long-service-leave

      Just contact NSW IR directly instead

  • ThithLord on 11/05/2018 - 08:10

    Take it to ACA

  • Nutrino on 11/05/2018 - 08:31
    -1

    Talk about a pickle, 3 months salary isn't Chum change. I would have waited a extra month.

    • Donaldhump on 13/05/2018 - 08:54
      +1

      It’s only 2months

      • [Deactivated] on 16/05/2018 - 10:11

        8.667 Weeks in NSW/QLD/Vic, 13 weeks in SA. States are weird.

  • CheapskateQueen on 11/05/2018 - 08:50
    +13

    Fight it. unless you were fired for some reason you're not telling us, it's pretty clear they terminated you immediately for the sole purpose of avoiding LSL.

    • [Deactivated] on 13/05/2018 - 16:30
      +2

      Because he put in a resignation, he was not terminated, he quit. The employee doesn't get to then choose the termination date as far as I'm aware if the company pays out the 4 weeks, it's their right to make the termination date immediate.

      Basically the system is setup to stop what the OP did. They might have made the date immediate to stop them paying LSL, but that doesn't mean they're not allowed to. Now if you HADN'T resigned, or they hadn't given the 4 week pay, then you'd have a case.

      Note in this case, if you can start at the other company early, at least you'll have 4 of the 8-15 weeks LSL (depending on your companies LSL policy).

      • CheapskateQueen on 13/05/2018 - 18:10

        this is a really interesting situation and it really depends on more details about the OP's contract, and the interpretation of the legislation.

        i read it as the employer terminating him, but if the employer waived the 4 week notice period instead and it's in his contract, then it would come down to the definition of service, and anti-avoidance provisions.

        For example, I'd look into section 11 of the Long Service Leave Act 1955.

        Service is "continuous service" and then maybe argue that the continuous service was only broken because of his absence of OP under the terms of the contract (i.e. employer exercising right to pay him out under the contract)(i below), and/or his service was ended because of the employer making a decision with the intention of avoiding LSL obligations (iii below)

        (11) For the purposes of this section:
        (a) service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment,
        (a1) the service of a worker with an employer shall be deemed to be continuous notwithstanding that the service has been broken by reason only of an interruption or determination thereof:
        (i) caused by the absence of the worker under the terms of the worker’s employment,
        (iii) made by the employer with the intention of avoiding any obligation imposed on the employer by this Act or by any obligation in relation to sick leave imposed on the employer by a State industrial instrument.

      • chriise on 14/05/2018 - 23:19

        As I understood OP they weren't 'terminated' , rather given 4 weeks garden leave to see out the remainder of the notice.

  • DarkOz on 11/05/2018 - 09:20
    +2

    There are 2 things to look into.

    1. In NSW I always thought that it would be pro-rata after 5 years and before 10 years unless the termination is from a serious offence.
    2. The last day of employment shouldn't be the day of the actual pay out by your employer. It should have been the last day specified in your resignation or the last day of the pay out period.

    Your ex-employer is playing games with you. I can only assume this is revenge for your resignation.

    • [Deactivated] on 13/05/2018 - 16:33

      1. Resignation != termination. Once you've put in a resignation, their only obligation is to pay you for the notice period, not to keep you employed. Basically, don't put anything in writing until you're willing to actually step out the door on that day.

      2. You're unlikely to be correct on this unfortunately.

  • JimmyF on 11/05/2018 - 09:32
    +7

    I have contacted FairWork Commission and they advised me to contact a lawyer.

    and there is your answer…..

    • boomramada on 11/05/2018 - 10:21
      +4

      what fun in that, you got to ask Ozb lawyers :)

      • JimmyF on 11/05/2018 - 14:04

        Yes, the spoon feed me ozb posters always want feed lawyer advice.

    • Hardlyworkin on 11/05/2018 - 14:09
      +2

      OP contacted the wrong agency, FWC has almost nothing to do with long service leave. Needs to speak with FWO and/or NSW state IR.

      • boomramada on 11/05/2018 - 15:57
        +1

        I think you think doesn't matter, OP need to talk to a lawyer and need to prove OP's resignation supersede termination.

      • [Deactivated] on 13/05/2018 - 10:32

        Plus one to this. It’s FWO the OP needs to contact as well as NSW IR

  • SmiTTy on 11/05/2018 - 09:52
    +7

    Let us know the outcome.. Im Curious to see how this plays out if u dont mind sharing

  • Changskies on 11/05/2018 - 10:24

    seems like youre not telling all the stories. they paid you out - meaning you identified youre going to a competitor maybe? this situation is in moral grey zone; however if you are moving to a direct competitor then… tough luck

    • Baghern on 11/05/2018 - 10:54
      +1

      He's told us all, its just a grey area depending on how you look at it.

      I see it as him losing out, due to his employer seeing a loophole and taking it

  • robbyjones on 11/05/2018 - 16:43

    Get your ducks in a row before doing anything. Keep copies of all paperwork of the 'termination'. It is not legal for a company to sack you once you have resigned, unless they have cause (and even then to sack immediately it must be serious otherwise they would have to go down the warning, re-education route first). They can place you on 'gardening leave' and they can make demands regarding your employment with another company not starting before your gardening leave is up (I know this because this happened to me) however your last day of employment is the date that the termination is paid out to. If they are stating that you were paid out due to redundancy then this is another matter and another set of rules apply.

    This is messy and as I said at the start get all your letters, notes, verbal conversations together and seek advice from a solicitor that deals with employment contracts. There is a good chance that one letter from a lawyer will see them pay out what you are owed and whilst you may have to give some of those fund over to a solicitor it is better than fumbling your way through now, getting it wrong and not getting anything.

    Good luck, I don't envy your situation one bit.

    • Hardlyworkin on 11/05/2018 - 20:06

      ' It is not legal for a company to sack you once you have resigned, unless they have cause (and even then to sack immediately it must be serious otherwise they would have to go down the warning, re-education route first). They can place you on 'gardening leave' and they can make demands regarding your employment with another company not starting before your gardening leave is up'

      I appreciate that you are trying to help someone though what you have stated is incorrect. When an employee gives notice it is up to the employer at that point whether the employee works out the notice period or the employer ends employment then and there and they pay out the notice period. A less common situation is an employer puts the employee on gardening leave.

      It's pretty common for an employer to just pay out the notice period and employment ends on that date, particularly in professional environments.

      • Serapis on 14/05/2018 - 21:27
        +2

        I appreciate that you are trying to help someone though what you have stated is incorrect. When an employee gives notice it is up to the employer at that point whether the employee works out the notice period or the employer ends employment then and there and they pay out the notice period. A less common situation is an employer puts the employee on gardening leave.

        +1

      • [Deactivated] on 15/05/2018 - 14:29

        It's not possible to be sacked once you resign, because your resignation notice is a forfeiture of any future employment rights at the company, effective the minute you give it to your employer in writing. The date you put on there is a maximum you have to work there before you can lose pay for time worked already! They can pay out the notice period and end your employment immediately.

  • Cheapskate Paul on 11/05/2018 - 20:07
    +1

    Yet another case of wage theft. There should be penalties for this kind of behavior.

  • Meho2026 on 12/05/2018 - 05:14
    +13

    I asked an HR manager I know about your situation.
    I can't remember the exact wording they used but what they basically said was that you resigning ends your contract with your employer and makes their termination of your employment void.
    You are entitled to your LSL.
    The other thing was if your employers argument is that you were terminated before you resigned then put in a claim for unfair dismissal and argue that you were unfairly dismissed so they could avoid paying LSL.
    I think you've only got 21 days to lodge an unfair dismissal claim.
    Unless they have evidence that you weren't performing and they attempted to performance manage you then they won't win a case like that.

    • [Deactivated] on 15/05/2018 - 14:33

      You're not owed LSL in QLD or NSW unless you have worked a period of 10 years continuous service (not including any periods of unpaid leave) and have not been terminated lawfully or submitted a written resignation before that date.

      If you've been at a company 9 years and 364 days and you submit your resignation that day, the employer can legally end your employment upon receipt, and no further leave accrues. Their only obligation is to pay out the notice period (including any normal overtime etc).

      Other states are more generous with their LSL provisions.

      • Meho2026 on 17/05/2018 - 08:19
        -2

        I dont think thats correct.
        The OPs resignation ends the contract and provides a notice period that completes the ten years therefore qualifies for LSL.
        If the employers termination is taken as the end of employment then…
        "The Act also provides for a pro-rata entitlement after five years, if an employee’s services have been terminated by the employer for any reason other than serious and wilful misconduct".
        http://www.industrialrelations.nsw.gov.au/oirwww/Employment_…
        The prorata will be calculated at 9 years and 11 months.
        Either way they are entitled to LSL.
        If the employer is claiming the employee was terminated for serious and wilful misconduct they would have to show evidence of this at an unfair dismissal hearing. In this case it sounds like they would be unable to do this.

  • Mrgreenz on 12/05/2018 - 15:47

    Would have been much more clear cut to just work the extra month. I would email and ask them when it will be paid, define why you believe it is owed to you and then follow up saying you will be contacting a lawyer on the matter if they say no again.

    hopefully the mention of it gets it done.

    if not you might have to pay for a actual lawyer

  • gstfree on 12/05/2018 - 16:20
    +3

    On what basis your employer terminate you? If your employer terminate you on the day of resignation, it's unfair dismissal.

    Your employer can place you on gardening leave, your final day (official termination date will not be impacted by gardening leave).

    Please do speak to your HR first. I am sure a reasonable person will get your LSL paid.

    • Harold Halfprice on 12/05/2018 - 22:12

      My contract states my employer can terminate my contract and pay me out for 4 weeks, in lieu of notice. I believe it would be fair grounds to dismiss him if he had accepted a position at a competitor - as that then becomes a conflict of interest.

    • [Deactivated] on 13/05/2018 - 16:37
      +1

      If you resign you're not 'terminated' you quit, they can just pay you the notice period instead of requiring you to still be employed.

  • gstfree on 12/05/2018 - 16:23
    +1

    Also do not sign anything. You are under no legal obligation to sign anything.

    The only time you sign is employer give you something not saying in your contract. E.g. ex-Gratia.

  • Your Friend on 12/05/2018 - 17:00
    +3

    Hi OP, I’m not educated in this area but just wanted to post and say I hope you get what you’re entitled to. No matter what anyone says giving up 10 years (or 9 years and 11 months) of your life for a single employer is a huge contribution and sacrifice. Its honestly pretty surprising that they can’t recognise this and are trying to be slimeballs. Did you have a bad relationship with the company or are they just a massive size?

    • DiscoJango on 13/05/2018 - 09:15
      -1

      theres 2 sides to every story ey, and we are only hearing the op's side. if they are someone who constantly takes all their sick leave every year, takes random days off, asks for leave with minimal notice then i can understand why the company wants to stick it to them. if op is a genuine employee, then its a case of employer just wanting to retain some extra $

    • VeganShark on 13/05/2018 - 14:43
      +1

      Never had any issue with the employer. In fact, my manager left back in Dec and I was doing his role as well for almost 4 months.

  • bad hombre on 12/05/2018 - 18:18
    +1

    This should be an easy one for any lawyer to advise. I always thought that you are an employee until the day you finish, i.e. your entitlements like insurances, annual leave, even sick leave continue until your very last day even if you have resigned - check your employment contract it may advise conditions of long service leave?

    • gimme on 12/05/2018 - 18:44

      Didn't read anything above but don't worry you're eligible. Take them to fairwork if they refuse.

  • lostn on 12/05/2018 - 19:15

    You should get pro rata at the very least. But you should have done the extra month first and then handed it in. I don't think you're in the wrong but that's what I would have done.

    If there's a union you are in I would speak to them or HR.

    Actually scratch all that. I don't know anything about NSW law so I can't advise.

  • itstuan on 12/05/2018 - 19:27
    +1

    Contact Fair Work Ombudsman for the most accurate answer. I was in similar shoes as yours. The 4 weeks notice should be counted toward your employment and if it reaches 10 years. You should be entitled.
    Once you get advice from Work Ombudsman and if its in your favour. Don't hesitate to write a letter to your HR & give them some facts, don't forget to include Fair Work Ombudsman too.
    Also don't forget to put a little strong word of action if they don't give you your entitlement. Good luck!

  • T1OOO on 12/05/2018 - 20:06
    -6

    Lmao!!! How do people get them self in this situation really?!??!

  • T1OOO on 12/05/2018 - 20:10
    -2

    This opens up to many issues. For instance if you took unpaid leave you won’t actually be entitled to 10 years workand d as that dosnt count toward your emltoyment.

    Man what a silly silly thing to do. Why not take 2 months sick leave first. Start your new job. Then resign after sick leave is up from ur iob.

    • Your Friend on 12/05/2018 - 20:54
      +3

      Pretty dumb suggestion from someone so cocky. If you have actually read your employment contract there’s always a clause saying you can’t take up other jobs whilst still employed at that company. So if he took sick leave and started working during that time like you suggested he would be breaking his contract and would definitely forfeit his long service leave. But lmao!!!!!

    • gimme on 12/05/2018 - 21:32
      +1

      Dumb×100

    • Piranha2004 on 13/05/2018 - 08:55

      How would you justify 2 months of sick leave?

      • releasethekr4cken on 14/05/2018 - 16:26

        Yeah this was up there with the dumbest comment in the thread. 2 months sick leave? Yeah right

        I am work in W.A and was terminated on "disciplinary" grounds on a Job after 4 years, and even my employer paid out my LSL pro-rata!

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