The Commission dismissed the applicant’s claim that she was entitled to payment for pro rata long service leave for the period following her first 10 years of service from her employer.

The claim was dismissed because the Commission found that there was no such entitlement in the applicant’s contract of employment and the entitlement to long service leave is only triggered, under the employer’s policy once an employee has completed a period of 10 years’ continuous service.

Background

The applicant worked as an early childhood educator with the respondent for a continuous period of 13 years and 264 days before resigning. The respondent satisfied the applicant’s entitlement to long service leave accrued for the first 10 years of her employment, by allowing her to take a portion of that long service leave and paying out the value of the balance of the accrued leave when she resigned. Regarding the final 3 years and 264 days of service, she had a pro‑rata balance of 4.84 weeks or 138.77 hours of long service leave with a monetary value of $4,658.47.

Contention

The applicant claimed she was entitled to payment for pro rata long service leave for the period following her first 10 years of service, being the period from 20 June 2017 to 10 March 2021.

The respondent contended that under its Long Service Leave Policy, and therefore the employment contract, long service leave for the second period is only paid out if the ‘subsequent period’ referred to in the policy has accrued in full. That is, the applicant only has an entitlement for the second period if she works for the respondent for another complete period of 10 years.

The respondent relied on the following paragraph from its Policy:

An employee who resigns or whose appointment is terminated for any reason shall be paid the monetary equivalent of any long service leave entitlement accrued.

The applicant submitted that the paragraph’s meaning was not immediately apparent or clear on its own. She maintained it was ambiguous, and capable of having more than one meaning.

Findings

The Commission dismissed the claim because the applicant had not been denied an entitlement under her contract of employment.

The applicant’s claimed entitlement to payment in lieu of taking leave must be found in the terms of her employment contract, via the Policy. Thus, resolving the claim involved determining the correct meaning of the Policy.

Considering the Policy structure and Policy as a whole, the Commission determined that the entitlement to take 13 weeks of long service leave on full pay (and pro rata for part‑time employees) under the Policy was triggered only after an employee had completed a period of 10 years’ continuous service. There was no entitlement to take long service leave before a 10‑year qualifying period of continuous service was completed. When the Policy used the word ‘accrued’ in these paragraphs, it was referring to an entitlement to take leave that has become due upon the completion of 10 years of continuous service but has not yet been received.

The applicant’s second period of service of 3 years and 264 days, being less than 10 years of continuous service, was insufficient to qualify her for an entitlement to take long service leave. She did not have a long service leave entitlement accrued.

The decision can be read here.