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

  • CheapSticks on 12/05/2018 - 20:36
    -1

    You are certainly entitled but given the position your employer has taken - you need to make sure that you have spoken to right people at fairwork and your section union (if any) and a lawyer before writing to HR.

    My next email to HR would have been threatening so they stop playing but you need to line all the ducts for that.

  • Cheeper on 12/05/2018 - 21:02
    +1

    Many legal specialists in this field will grant you a free first interview and discuss possibilities.
    That is where I would head to… have your situation printed out though giving him exact details dates etc.

  • gimme on 12/05/2018 - 21:35
    -8

    Reading ozb forum threads is good for my self esteem. I'm def in the top 5%. Tip: Basic google skills and some critical thinking would probably get you to top 15%. The rest is genetics and life experience.

    • Your Friend on 13/05/2018 - 13:24

      except you live in WA so that puts you in the bottom 5%

      • gimme on 13/05/2018 - 21:28
        -1

        Except I don't lol. Don't believe everything on the internet. e.g 'my friend'

  • tik tok on 12/05/2018 - 22:17

    What does your contract say ? Does it say notice period can be bought by either side ?

  • sparkles on 12/05/2018 - 22:45
    +1

    The employer probably knows the deal, but is seeing if OP will fall for their shady tricks. Especially given the timing because a prudent person would have waited until 10 years 1 day before resigning. Until that point, you should make not one mention, not one hint of leaving.

    Did you officially resign first in writing, before they pulled their contract end stunt?

  • mangolassi on 12/05/2018 - 22:56

    I know it may be a shot in the foot for the legal fees if you do proceed, but you can claim it back on tax. My friend had an unfair dismissal and had to pay few grand in legal fees upfront prior to proceeding, the lawyer said it is tax deductible and can be claimed as it is a work related expense.

  • D6C1 on 12/05/2018 - 23:08
    -5

    Surprised no one mentioned bikies. Coz you know….

    • [Deactivated] on 13/05/2018 - 08:39

      Not bikies but definitely bikie’s lawyers.

  • Kurusawa on 13/05/2018 - 03:35

    I had my LSL paid out and I quit my job when I was about 9yr 6mth with the company. Not too sure how the law is at NSW, but here in WA your LSL get paid out as long as you have worked over 7 years.

    https://www.commerce.wa.gov.au/labour-relations/long-service…

    When an employee resigns, is dismissed, is made redundant, or dies the employee is entitled to long service leave as follows:

    If the employee has completed at least 7 years but less than 10 years of continuous employment - the employee is entitled to pro rata long service leave on a proportionate basis of 82/3 weeks for 10 years of continuous employment, including years, months and days (unless terminated for serious misconduct).

    • [Deactivated] on 13/05/2018 - 16:38

      WA is a bit different in that respect. SA is different too. Basically the states all have their own rules….

  • [Deactivated] on 13/05/2018 - 08:40
    +2

    I msg this to my sister who also works at FairWork to see if she gives the same advice. Just waiting for her to wake up.

    • JungliChilli on 13/05/2018 - 09:46

      Jake's sister, poke poke, wake up already!! :D

      • D6C1 on 13/05/2018 - 10:03
        +1

        Lol who's poking

    • [Deactivated] on 13/05/2018 - 10:34
      +4

      OP needs to contact FWO first for checking where their LSL entitlements comes from.
      https://www.fairwork.gov.au/leave/long-service-leave
      In most cases it's the state legislation so they'd need to call NSW IR and ask for their dispute resolution process.
      They may be able to lodge a small claims action of either FWO or NSW IR can't intervene
      https://www.fairwork.gov.au/how-we-will-help/how-we-help-you…

      I have had some experience in dealing with HR on my wife’s behalf with LSL. Hers was about how it’s paid when your load has changed. My experience hear is that they often don’t know the rules well and if your provided evidence from legislation (hence contact FWO and NSW Ir) it goes well.
      I have also been a Union rep. In that experience it showed they might not be on top of all legislation and work agreements.

  • DiscoJango on 13/05/2018 - 09:12
    +1

    i resigned from my current company a few years ago, but then got a (literally) last minute offer. my manager informed payroll & hr not to put the termination through, however it did go through for some reason, but i didnt know this. few days later i saw a large! lump sum payment in my bank account (not regular pay cheque) which turned out to be my long service leave. as they had to re-instate it, i had to return the money back to my employer. that was a hard netbank transaction to do!

  • Draco on 13/05/2018 - 09:56
    -1

    Seems pretty straightforward they paid you for you one month notice therefore your final day of work is the final day of that one month. You look to have a case for payout here.

  • Jacala on 13/05/2018 - 10:51
    +9

    I've just been through this and unfortunately most of the advice you've got here is wrong.

    First (and I realise this is too late), it's a good idea to get advice from NSW Industrial Relations and from an employment solicitor before you resign.

    I asked NSW IR about a situation identical to yours — resigning with 4 weeks notice before 10 years. In NSW you are entitled to long service leave after 10 years of employment. Their advice was that if your employer terminates your contract after you resign rather than making you work out your notice period, then you will fall short of 10 years of employment.

    Between 5 and 10 years you are entitled to pro-rata long service leave if an employee:
    - 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.

    If you resigned "as a result of illness, incapacity, domestic or other pressing necessity" that should have been stated on your resignation letter, and I'm guessing it wasn't, so that probably doesn't look great for you either.

    Your best course of action is to talk to NSW Industrial Relations about lodging a formal complaint. They will ask you to send a letter of demand to the employer stating your reasons for believing you're entitled to long service leave, and giving them seven days to respond. If they don't, you can lodge a complaint and eventually NSW IR will investigate and make a decision. It may be that getting NSW IR involved will be enough to motivate your employer to pay your LSL, but to be honest given that they knew to terminate your contract rather than making you work out your notice period it sounds like they are already reasonably well informed.

      • cameldownunder on 14/05/2018 - 11:10

        Small error, OP wants LSL-Pro-Rata
        What the employer wants is not paying anything for the pro rata.
        So who is using a loophole here ?

        • Geryatric on 14/05/2018 - 18:00

          In NSW there is no provision for pro rata payment if you choose to resign (outside of pressing domestic necessity). Pro rata after 5 years applies if you are terminated by the employer.

          The outcome will be based on the interpretation of whether it was a resignation or a termination.

        • gromit on 15/05/2018 - 17:25
          +1

          NSW has clear rules on pro-rata, it isn't really a loophole, it is sadly him not doing his research before resigning on what the rules are.

    • cameldownunder on 14/05/2018 - 11:09
      +3

      Between 5 and 10 years you are entitled to pro-rata long service leave if an employee:
      …. - is dismissed for any reason except serious and wilful misconduct;

      my employer terminated my contract on the same day of my resignation

      so OP should get pro-rata

    • Serapis on 14/05/2018 - 21:29

      This is the most factually correct answer I've read here, here take a +1

    • [Deactivated] on 15/05/2018 - 09:50
      +1

      Summary - you've overlooked a fact and volunteerily exercised the options that succinctly stipulates you forfeit your LSL under NSW law. GLHF.

  • xuqi on 13/05/2018 - 12:47
    +1

    Check info for all Australian states/territories (as mentioned):

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

    An employer may say whatever they want to discourage workers from pursuing their rights.

  • mgsydney on 13/05/2018 - 13:49

    Very common - have seen it occur in a different manner at my last place of employment. They gradually gave a completely different workload and sh*t kicker tasks to someone who frustrated and left a few months before the 10 year mark.

    They had a well-written legal letter which indicated they would be initiating legal proceedings and before too long, was paid their long service leave.

    Nothing to lose asking for some advice. Try a "no win no fee" but ensure there is absolutely no cost to you at any stage because I dont know how they work.

  • mgsydney on 13/05/2018 - 13:52

    I should ad, it smacks of them actively attempting to avoid paying LSL - and that was what my old colleague had in his letter.

    I assume they would not have been able to hire your replacement within a day? If this is the case, this supports the claim as well. If there were other co-workers who would have been able to cover your role until they re-hired thats a different story.

  • [Deactivated] on 13/05/2018 - 17:36
    +3

    There should be a punishment for employers who shortchange their employees because they are exploiting the power position. There are plenty of places the employee gets systematically disadvantaged.

    My partner was made to leave at 9 years and 6 months mark by making the job progressively difficult and impossible.

    • [Deactivated] on 15/05/2018 - 14:12

      Forced to leave there is in-fact penalties. If you resign and it wasn't under duress, however, you're not owed LSL in QLD/NSW unless you've been there 10 years at the time you hand in your resignation notice or are still there working at your desk until that time.

  • OhNoUShiz on 13/05/2018 - 19:21
    +1

    This had proven coporate loyalty sucks. You should have jumped every few years getting higher wage than staying for almost 10 years and they don't a shit about your long term service benefits.

    • gimme on 13/05/2018 - 21:26
      +2

      Really? 9years and 11mths is nothing???? Also it's a technicality and borderline unethical by the company. And they already explained why they resigned 1mth short.

      • Skramit on 13/05/2018 - 21:53
        -4

        A technicality the OP is trying to exploit rather than simply work the 10 years. The contracts are written to enable the employer to stop this if they so desire.

        • gimme on 13/05/2018 - 21:56
          +4

          You realise he was trying to work the 10 years..they terminated him. Not sure who's exploiting who.

  • tasmanian guy on 13/05/2018 - 20:43

    Ask your worker's union…. you are in a union aren't you?

    • VeganShark on 13/05/2018 - 21:35

      Unfortunately not :(

  • djmm on 13/05/2018 - 21:24
    +3

    What is the company name?

  • yamahamoto on 13/05/2018 - 21:55

    For this exact reason I delayed my new job offer for 1 extra month to reach 7 years to hand in my 4 weeks notice (VIC). I told my new work the truth and they were happy to delay by an extra month.

  • Redoubt on 13/05/2018 - 22:19
    -1

    If the employer terminated your employment, you are entitled to both long service leave payout and redundancy/severance payout, unless you were fired for serious misconduct. Redundancy/severance payout could be 12-16 weeks depending on industry after 10 years of services.

    Check these pages out:
    http://www.industrialrelations.nsw.gov.au/oirwww/Employment_…?
    http://www.industrialrelations.nsw.gov.au/oirwww/Employment_…
    https://www.fairwork.gov.au/ending-employment/redundancy/red…

    For resignation, you would only entitle to Long Service Leave payout.

    • Hardlyworkin on 13/05/2018 - 22:59
      +1

      Yeah nah. Not sure how you came up with redundancy? You must be a gun lawyer to pull a redundancy payment outta this one!

  • Baa on 14/05/2018 - 00:17

    I would be surprised if the FWO did not rule in your favour fairly quickly.

    I have dealt with a few large organisations who have gotten into hot water by similar shady practices - some of those just pay pro rata after 5 years (in NSW of course) unless they have good reason not too after some of the headaches it has caused. (Work as a consultant for payroll/hr software)

    If at all fails just consider what your 'domestic or other pressing necessity' is before you give away too many details on way you are leaving.

    I have more details on my thoughts on this in my work email, which I am too lazy to get right now but can certainly send in tomorrow if needed.

    Do some googling as there is info out there about it.

    https://workplaceinfo.com.au/payroll/leave/q-a/pro-rata-long-service-leave-what-is-meant-by-domestic-or-other-pressing-necessity”

    While you may be resigning, the domestic or pressing necessity behind that may be that you need the extra pay due to financial stress, or traveling for too long is keeping you from helping with family and so on.

    • Jacala on 14/05/2018 - 10:23
      +2

      IANAL but I did consult one and also NSW IR before resigning in comparable circumstances.

      (1) This is under the jurisdiction of NSW Industrial Relations, not the the FWO. NSW IR does have a complaint process which doesn't cost anything, and they are also very helpful if you ring them. This should be your first port of call. This process is not necessarily quick though, but sometimes demonstrating to your employer that you're serious by getting NSW IR involved might make them change their mind.

      (2) "Domestic or other pressing necessity" is vague and courts haven't always sided with employees over what constitutes this. The problem is if you didn't cite this in your resignation letter as your reason for resigning, you will have a harder time making a case for it.

      (3) NSW IR specifically told me that the only way to guarantee your LSL was to be at your desk on your 10th anniversary. Specifically, if you resign 4 weeks before the 10 year anniversary and your employer terminates your contract rather than asking you to work out your notice, you won't qualify for LSL. You might think this is unfair or shady, but it's not illegal and, according to NSW IR, not even ambiguous about what it does to your LSL entitlement (i.e. wave it goodbye).

      On the surface it looks like your case is not great, but it's not up to me (nor anyone else on ozbargain), so advice from NSW IR and possibly also from a solicitor would be more helpful than random advice you will get here. Note that talking to a solicitor for half an hour can be extremely valuable and might not cost as much as you think.

      • [Deactivated] on 15/05/2018 - 08:59

        Actual advice from NSW IR deserves more upvotes really.

  • nikey2k27 on 14/05/2018 - 01:59
    +1

    join a union you pay for one full year but they will give you help u need for free.

  • syousef on 14/05/2018 - 08:50

    There has to be more to this regarding timing of resignation. Who in their right mind would put themselves in this position unless there were some advantage to be gained or pain to be avoided?

  • [Deactivated] on 14/05/2018 - 10:26

    straight to tracy grimshaw

  • VeganShark on 14/05/2018 - 11:34
    +9

    Thanks for all your thoughts. I am kind of losing my hope to get anything paid but it think it'll worth a try.

    So, here is my course of action:

    • Send a 'Letter of Demand' to the employer asking for LSL pay
    • Lodge a complaint for unfair dismissal (only got 21 days to submit)
    • Wait until I hit 10 years then engage a solicitor (No win no Pay kind of deal might work)
    • Lodge a complaint with NSW IR regarding unpaid LSL.

    My Only hope is " Between 5 and 10 years you are entitled to pro-rata long service leave if an employee is dismissed for any reason except serious and wilful misconduct". As there was no serious and wilful misconduct and it was my employer who terminated my contract ,i should get my LSL on pro-rata basis.

    • mgsydney on 14/05/2018 - 12:22

      Looks like a good approach.

      Don't let them sit on the letter for too long because you are into your 21 day period. May also be worth finding out whether you can lodge on the same day as well.

      If I personally was in your position I would just lodge the complaint with FWO at the same time because it's easier to withdraw it later on if they cave and pay you out.

      Don't wait for your 10 years. It shouldn't matter. The wheels of justice turn painfully slowly so start preparing yourself now.

      Best of luck please keep us updated.

    • [Deactivated] on 14/05/2018 - 13:06

      Have you contacted the FWO and NSW IR?

    • [Deactivated] on 14/05/2018 - 13:49
      -1

      Your employer didn't terminate your contract, you did. Your employer simply exercised their right under your contract to have your end date take effect immediately, by paying out your notice period.

      There's 0 hope that anyone will find you've been unfairly dismissed. You're stretching to hope they employers paid out period doesn't end your 'service'. That is, you're hoping that being paid out constitutes service. I'd be massively surprised if it's found to be that way.

      It's worth noting as well, it's specifically mentioned that a paid out notice period doesn't attract any annual leave accrual either. So one would imagine LSL wouldn't accrue either, thus never actually hitting the amount required to take it.

      https://www.fairwork.gov.au/ending-employment/notice-and-fin…

      For anyone else thinking about resigning it's also worth noting that if you try and be 'nice' and give more notice than is required, the employer isn't required to accept this and can still end your employment and only pay out the required notice period. So basically only give written notice once you're ok with your employment ending immediately and your payout period being the agreed period (usually 4 weeks after probation). Your desired end date means nothing legally.

      • mezje on 14/05/2018 - 13:54
        -2

        He terminated his employement @10 year mark, his employer terminated @9y 11m mark.

        If he was at the company for so long 4 weeks is absolute minimum he can give, pushing him to 10 years, afaik employer cannot terminate earlier.

        There is a case here imho.

        • [Deactivated] on 15/05/2018 - 08:51
          +3

          You're not correct. You officially resign when you provide notice that you intend to resign in writing. The date is irrelevant. The 4 week minimum is for the party which initiates the termination/resignation, in this case, the employee. The employer isn't bound to keep anyone employed for 5 minutes after they receive that notice, whether you put a date 1 day or 6 months in the future on the notice. They're only obligated to pay out the notice period, which doesn't include any LSL or leave accrual.

          Honestly can't believe I've been downvoted for giving the legally correct answer with references proving it.

          So OP gave notice @ 9y 11m mark, and legally that's enough. Your employment can be ended by the employer legally the minute they have your resignation in writing, it isn't considered termination unless they bullied you into it. (eg 'resign or be fired'). Yes, they have to PAY your notice period out if they don't want you to keep employed for that period, but as noted on the fairwork site, leave does not accrue.

        • gromit on 15/05/2018 - 17:30
          +3

          no he didn't he terminated his employment the moment he handed in his resignation. Not sure why Bargs got negs, he is 100% correct.

    • mezje on 14/05/2018 - 13:52

      Why are you ignoring comments previous. Ask HR why your employment doesn't qualify, it should be from your last day of employement else you were terminated, simple as that, both cases you qualify for LSL.

      • [Deactivated] on 15/05/2018 - 08:58
        +2

        Your last day of employment is the last day you went into work and worked. Paid out period don't count for leave accrual. Once you hand in your resignation, that can legally be your last day of employment, your employer is under no obligation to keep you employed, they just need to pay out the notice period and end your employment effective immediately.

    • [Deactivated] on 15/05/2018 - 08:56
      +3

      Basically I'm 100% sure you're (profanity). If you wanted your LSL and couldn't wait longer than the date you put on your notice, your only option legally was to resign with no notice on that day. You'd lose 4 weeks, but get the rest. Though in that case you'd only be marginally better off than you are now, assuming you have been able to start with your new employer. (4.667 weeks instead of 4).

      You didn't hit 10 years of employment, so you have no right to LSL.
      You can't be unfairly dismissed once you resign unless bullied into it.
      You won't find any solicitor who will touch this unless you pay them, and even then, an honest one won't progress past giving you the advice you have no case.
      Good luck.

  • haggertm on 14/05/2018 - 11:57

    I assume you're not with the union? I had issues when I resigned from my previous employment as well, I contacted the union and they sorted out my entitlements. I'm in SA and I received pro rata LSL, as I was there for roughly 8 years 6 months. If you weren't a union member, I would contact a lawyer. Then make sure you sign up with the union for your next employment.

    • [Deactivated] on 14/05/2018 - 14:04

      SA is the most generous state with respect to LSL requirements. Also if you have an enterprise agreement, or you are in certain industries, you may have more generous treatment of LSL than most people.

      (Certain jobs, particularly in the mining or construction industries allow you to take it with you).

      In SA you get 13 weeks after 10 years with pro-rata after 7 years upon resignation. This doesn't apply in NSW or QLD.

      In QLD/NSW/Vic you're only entitled to 8.6667 weeks after 10 years. So doing quitting right is getting a transfer to SA before you quit :o Though you do get pro-rata after 7 years in Vic at least. States!

  • sjj89 on 14/05/2018 - 12:04
    -1

    I believe the date of ending your employment you wrote on your letter of resignation is the legal date of the end of your employment.

    • [Deactivated] on 14/05/2018 - 14:06
      +1

      LSL is paid based on continuous SERVICE, the date you wrote means nothing, you can write a date 6 months in the future and your employer can end your employment the day they get the letter and only pay you 4 weeks (or whatever is in your contact / less if on probation).

  • shaiguy on 14/05/2018 - 16:23
    -1

    Ok, this is my view and I will break it down into parts. I am not a lawyer but have done some work on this in a related field.

    There's a few aspects to this situation:
    a) LSL paid out on resignation.
    In NSW, whilst this accrues on the employer's balance sheet as a liability from 5 years, it can only be paid out prior to 10 years due to certain situations as detailed before like Employer termination, illness etc. The period of employment is the last date they were working - not the date of resignation.

    b) LSL paid out on termination
    This can be paid out after 5 years (and as per above, given it is termination, they maybe able to be paid out termination payments as well.

    c) Logic/Reasoning to my view on OP situation:
    i) whilst the OP had given them notice of resignation and intended date of resignation, their employment was actually terminated. Put simply, the reason why they have stopped working is because of employer termination not the resignation as they provided notice to resign.
    ii) given OP's was terminated after 5 years they are entitled to:
    - long service leave pro-rata from 5 years to termination date
    - termination payments as calculated by relevant law.
    - if not a redundancy then they maybe even able to claim under unfair dismissal - the quantum is unlikely to be significant as they had already submitted the resignation but it could be wages for the month of notice until intended resignation date.

    • [Deactivated] on 15/05/2018 - 08:42
      +3

      a) The answer is a.

      Resignation takes effect IMMEDIATELY upon giving notice. There is no such thing as an 'intended date of resignation', you resign once you give notice of the intent to resign. So once you have given notice in writing you cannot be terminated because you have resigned. From then, your employers only obligation is to pay out your notice period (not including any annual leave / LSL that would accrue during that period). Your last date of employment might not be until the end of your notice period IF your employer agrees. In this case there was a strong incentive for them not to agree.

      The date you put has no bearing on the date you finish your employment. Your employer gets to choose your last employment date, you only get to make sure it's not 'more than' your notice period. You technically can make it less than your notice period as well, but you will pay a penalty.

      If OP didn't like his workplace and didn't mind the massive reputation hit, his best bet was to resign with no written notice. He would lose 4 weeks pay as a penalty, but get the LSL.

      No one has ever won unfair dismissal after handing in a written resignation unless the employer 'forced' you to resign due to unfair conduct, which is plainly not what happened.

  • dheywood on 14/05/2018 - 21:58
    +1

    Pretty sure the employer is completely in their right to end you employment straight away after receiving your notice and just pay your notice period, when I was made redundant 12 months ago (I was looking at quitting anyway) I did a lot of reading regarding scenarios like this. Should have just worked the extra month!

  • Natt on 14/05/2018 - 23:47
    +1

    My experience tells me only to heed advice when it's supported by evidence.

    Go and look at the award, then the corresponding LSL legislation.

    Having people guess, isn't helping you.

    it might not even be the State NSW legislation that applies

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

  • TheZohan on 15/05/2018 - 01:09

    OP, you mentioned you do not have a written contract. I suggest finding what Award you're covered under, which will state the provisions for either party to terminate the contract (ie. whether they are allowed to pay out the notice period, whether it will count as service etc). This is the key here.

  • [Deactivated] on 15/05/2018 - 09:03
    -1

    Oh, on the other hand, despite the fact that you're legally screwed. If you get a lawyer to harass your employer enough they may just pay to have the problem go away, despite them being 100% legally correct.

    But there's always the other case, I guy I work with was sued by his former employer for 'stealing trade secrets'. It was BS but they still managed to cost him $100k in legal fees before he gave in, despite being correct, because he couldn't afford to fight it anymore. Being legally correct doesn't have any real bearing on if you win, it's about having deep pockets.

  • Brouw3r on 15/05/2018 - 11:11
    +3

    This thread made me look up my works LSL arrangement:

    A lump sum payment for pro rata long service leave will be paid where:

    • an Employee resigns and the Employee has served a minimum continuous period of employment of 10 years

    Seems like it would be pretty clear cut for me, resign before working 10 years to the day and get nothing, pro rata after then.

    • grr1701 on 15/05/2018 - 13:48

      For you, yes, but he put in one months notice and was immediately terminated. Bit of a Trump act, really.

      • [Deactivated] on 15/05/2018 - 14:08
        +2

        Except that's a misconception, when you put in your notice for resignation, under the law your employment is allowed to end immediately (and it's not the company that has ended it, you have), regardless of when you want the date to be. The company only has to pay out the notice period. You can't be 'terminated' if you have put in a written resignation.

        Basically many companies don't want people that have checked out working for them, so they're allowed to end your employment immediately.

        Basically, you may think that when you put in the notice, your last day of employment is when you said, but it's whenever the company wants it to be, the date is a maximum if YOU don't give at least that much notice you can have pay withheld.

        For most people, not trying to 'just' qualify for LSL this ends up being advantageous as you basically get up to 4 weeks free leave without losing anything but the leave you would accrue over that 4 weeks.

  • grr1701 on 15/05/2018 - 13:46

    Someone may have already suggested this, but I’d contact the Federal Ombudsman and your Union and ask where you stand in your particular circumstances. It certainly looks like they have terminated you specifically to avoid paying LSL. But no, wait; employers don’t do that sort of thing, do they? They’re keen on tax breaks so they can employ more people and pay higher wages. 😂

    • [Deactivated] on 15/05/2018 - 14:36
      +4

      You can't be terminated once you have put in a written resignation, you can legally be asked to leave immediately. Paying you money for the notice period doesn't extend your employment.

      Absolutely they have done this to avoid paying LSL, for someone that hasn't worked for them for 10 years yet when they voluntarily forfeited their right to remain employed.

  • Hirolol on 16/05/2018 - 05:17

    Any update?

  • [Deactivated] on 16/05/2018 - 08:49

    You really should have waited until after you had completed your long service leave before resigning.

    Not sure why fair work and not handling your case. I would lodge a formal complaint with them first and if they don't egt you the outcome you want then engage a lawyer.

  • Austaurean on 16/05/2018 - 09:01

    firstly, good luck for a good outcome..

    my 2 cents. and no, I don't have any knowledge in this area.
    What I don't get is that it is a 'Notice of Intent'
    and providing a notice period as required, that says to me he has not terminated his own employment until the end date of his notice.
    Where is it his problem if the employer says here is 4 weeks wages, don't worry about finishing the notice period, that's the employers decision
    but the employees end date would surely still be the last day of his notice period.

    and yes updates, as this is an interesting issue

    • [Deactivated] on 16/05/2018 - 10:04
      +1

      Employers are not obligated to keep staff that have provided a written intent to resign, regardless of how far into the future that notice is. This is a very strong lesson, don't provide that notice until you are willing to walk out that door that day, with pay for the maximum of your mandatory remaining notice period. Eg. If you give written notice you intend to resign in 2 months, and your notice period is 4 weeks, they can march you out the door on the day you hand it in, and only pay you for the mandatory 4 weeks.

      Effectively employers are allowed to do this because in many cases it can be bad for company morale if you have a staff member who has resigned who can then act 'without consequences' until their notice period is up. It can bring down company morale / they can steal company secrets to take to a competitor etc.

      Once you hand in your notice, YOU have terminated your employment, your employer can then march you out at any point they like. Fairwork linked above mentions if the employer does elect to pay you for the period instead of requiring you to come into work, that leave does not accrue. So basically, leave only accrues if you come into work. So LSL and annual leave stop accruing the day you're told not to come back, not the date you put on the notice.

  • foolsgold on 16/05/2018 - 10:07
    +3

    probably the first thread i've read on Ozbargain that actually saved me some money.

  • Zetrox2k on 16/05/2018 - 11:17

    you definitely have grounds here. If you resigned at 9 years and 11 months and gave 1 months notice, you are still technically under the employment of the organisation for that last month, hence why it is paid out.

    I dont think you would even need a lawyer. VCAT should allow you to plead your case… give them a call, represent yourself…. the way i see thisits pretty open and shut.

    • [Deactivated] on 16/05/2018 - 13:22
      -1

      Negative. It's paid out because that's the standard employment terms, it doesn't constitute employment for leave accrual unless you're at your desk working. Fair work explicitly says that leave does not accrue when you are paid out, whereas if you work up until the notice period ends, leave does accrue.

      VCAT is for Victoria, in Victoria he would be eligible for LSL on a pro-rata basis, having already worked 7 years. In NSW which is the relevant state here, he is not. QLD and NSW are very much the worst states for employees for LSL. You must be at your desk after 10 years + any unpaid leave periods, or you're entitled to no LSL.

      • lgacb08 on 17/05/2018 - 19:44

        Nsw is not that bad, in Vic you won't get lsl payout if you got made redundant and have been at the company for less than 7 years.

        • [Deactivated] on 18/05/2018 - 11:27

          interestingly it only says that in NSW redundancy pay ‘may include’ LSL. In QLD it’s definitely nothing until 10 years, when your redundancy payout actually decreases by 4 week..

      • T1OOO on 22/05/2018 - 13:40
        +1

        You must be at your desk after 10 years + any unpaid leave pe

        not really, you can be on anual leave too…. still accrues, same with public and sick days…

        its part of your entitlements.

        • [Deactivated] on 12/06/2018 - 11:00

          You can be on annual leave, but your employer isn't going to let annual leave coast you over the 10-year line. So you WON'T ever be on annual leave at that point unless you haven't given notice yet and are on leave.

  • staypositivebound on 18/05/2018 - 15:54

    Perhaps HR could help you? I doubt it though. Or a lawyer, I suppose as a last resort. Good luck.

  • T1OOO on 22/05/2018 - 13:38

    seams it similar to this case

    https://www.smartcompany.com.au/business-advice/legal/solene…

  • Bart Bart on 28/05/2018 - 20:25

    Any updates, OP?

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