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NSW Entitlement to Long Service Leave after Employee Resignation?

Discussion in 'Employment Law Forum' started by Mitchello, 9 October 2014.

  1. Mitchello

    Mitchello Member

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    My question relates to Long Service Leave.

    We have an employee who started working with us on 22 Jul 2004. Around the 17 Apr 2004 he ran into a problem with his partner which ended in a breakup. He came to us and said he wanted to cash out his holiday pay to get rid of his debts. We said that under our award ( Timber Industry)we were not allowed to cash out holiday pay. He then said he would resign and put it in writing giving us a weeks notice because he needed the money. We explained that if he resigned that he would lose all entitlements to Long Service Leave and he said that he understood but needed to get his hands on the money. He did resign and was paid out on the 24 Apr 2004. He stated that we might see him again for a job and we again stated that he would have lost all entitlements. He re-applied for a job the following Monday and filled in new tax declarations, job applications and completed a new induction.

    He is now asking to take Long Service Leave saying that we should be using his original start date and not the date of re-employment because there has been no break in service?

    Any help would be great.
     
  2. Paul Cott

    Paul Cott Well-Known Member

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    Mitchello,

    It is a little confusing with the dates you mention but a break in continuity of service would generally preclude long service leave applying. The longer the break the more likely that is the case.

    Hope that helps you.

    Paul,
     
  3. Mitchello

    Mitchello Member

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    Thanks Paul

    Sorry about the dates, he resigned 24 April 2009. As it was the break was only over a weekend.

    Thanks again
    Mitchello
     
  4. Paul Cott

    Paul Cott Well-Known Member

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    Mitchello,

    Some breaks do and some do not count for continuity of service purposes.

    In NSW generally though, resignation breaks the period of continuity, except where it is a forced case of resignation, I.e. Constructive dismissal, which on the facts you have given, it may well not be.
     
    Mitchello likes this.

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