Worker argues 'domestic necessity' entitles him to proportionate payment
The Queensland Industrial Relations Commission (QIRC) recently dealt with a case involving a worker's claim for pro rata long service leave after resigning from his employment due to domestic necessity.
The decision discussed the circumstances under which an employee may be entitled to long service leave payments even if they resign before completing the requisite years of service.
In this case, the worker had been employed for over seven years but had not yet reached the ten-year mark when he tendered his resignation.
The key question before the Commission was whether the worker's resignation was due to a "domestic or other pressing necessity," which would entitle him to a proportionate payment of long service leave under the Industrial Relations Act 2016.
According to the QIRC, this legislation provides that an employee who has completed at least seven years of continuous service is entitled to a proportionate payment for long service leave upon termination of their employment, provided that the termination is due to the employee's illness or a domestic or other pressing necessity.
The worker's circumstances
The worker, who had been employed since November 2014, submitted that he had to resign from his position to become a full-time carer for his children, particularly his six-year-old son who had been experiencing ENT (ear, nose, and throat) issues since the age of 12 months.
The worker's partner, who had been working on her own business for five years, required the worker to take on more parental duties as her business was expanding and her income was more financially supportive for their circumstances.
To support his claim, the worker provided a medical certificate confirming his son's medical conditions and upcoming appointments at the Sunshine Coast Hospital and Health Service.
Additionally, the worker's partner wrote a letter stating that the decision to leave his employment was made to ensure their son received the necessary support.
The employer's response
The employer argued that the worker had initially stated that he was resigning to care for his father, who had been diagnosed with Parkinson's disease, before changing his reason to needing time off for his child's doctor appointments.
The employer maintained that they had always been supportive of employees' personal and domestic needs, offering the worker immediate leave when required and even proposing flexible working hours to accommodate his situation.
The employer questioned whether full-time care was necessary to the extent that the worker had to resign, noting that other families have stay-at-home parents who also work part-time.
They argued that the worker had not provided sufficient information to confirm that his resignation was necessary.
The Commission's findings
In considering the evidence presented, the Commission found that the worker's resignation was indeed due to “a domestic necessity,” as outlined in the Industrial Relations Act 2016.
The decision noted that "the terms 'domestic necessity' should not be conflated with 'other pressing necessity,'" and that "it is not necessary to demonstrate that the domestic necessity is pressing or urgent."
The Commission emphasised the importance of considering each case's unique circumstances, stating that "it is beyond the scope of the statutory criteria to examine whether the Applicant could have structured a part-time role alongside his caring responsibilities, particularly in circumstances where the Applicant's son has ongoing medical needs."
Should long service leave be awarded?
The Commission concluded that employees who resign due to genuine domestic necessities may be entitled to pro rata long service leave payments, even if they have not completed the full term of service typically required.
The Commission added that the worker had resigned due to a domestic necessity, as his partner's expanding business required him to take on a greater proportion of parenting duties and be available for his child's medical appointments.
"I am satisfied on the material before the Commission that the Applicant resigned from his employment to be available to bring his child to medical appointments and take on a greater proportion of parenting duties," the decision said.
The Commission also addressed the employer's argument regarding the worker's initial mention of his father's Parkinson's disease, explaining that "these two scenarios are not mutually exclusive, and in my view, both fall within the category of 'domestic or other pressing necessity.'"
In its conclusion, the Commission determined that:
"For the reasons outlined above, I have determined that the Applicant resigned from his employment because of a 'domestic or other pressing necessity' within the meaning of s 95(4)(b)(ii) of the IR Act and is entitled to proportionate long service leave."
