NSW LSL for Domestic and Other Pressing Necessity

[Elksgrove]

Hello

I had been working for my employer for 9 years and 3 months and recently resigned after my 12 month materinty leave was up to stay at home and look after my child full time.

I have requested that i be paid out my long service leave (pro rata) due to domestic necessity. My employer has rejected my claim. This stance was also backed up by NSW IR when i contacted them and the case manager said i couldnt meet the burden of proof required.

My question is - what do i need to show to prove that staying home to look after my child is domestic necessity? Is referring the case below enough for my claim or is there more i need to do to prove my claim?

Looking online i have found references to Donnelly v South Maitland Railways Pty Ltd 1964 (in and IR NSW PDF http://www.industrialrelations.nsw.gov.au/biz_res/oirwww/pdfs/Long_Service_Leave_2015.pdf )

It is also not financially viable for me to return to work at this stage but from what i can see this is secondary to the original reason.

thanks

 

[Rod]

and recently resigned

When giving notice did you say you were resigning due to "domestic or other pressing necessity"?

Failure to do this may be your stumbling block.

Found references to these two cases but no reported judgment so not sure how much they help:

Australian Municipal, Administrative, Clerical & Services Union v Qantas Airways Award (1996) 66 IR 70
Westbus Pty Ltd v Bartush (2000) NSWIRComm 26

The PDF you found outlines the steps you need to take.

 

[Elksgrove]

Thank you for finding these cases i appreciate it

yes i did, in the letter i even referenced other cases (from other states as that was all i could find at the time) which showed domestic necessity included looking after children

They rejected the claim for domestic necessity because IR NSW stated i could not meet the burden of proof required therefore they did not believe any case would be successful.

IR NSW were not helpful at all. They stated they couldn't find any cases which supported my claims and the interstate examples i had at the time were not relevant.

 

[Rod]

Did you see the steps in the PDF link you posted?

When you say 'they rejected the claim', who is they? Employer or IR NSW? Looks like your first step is writing to your employer, then work your way through the steps one at a time, make sure you put everything and writing and keep it formal as far as you can.

What steps have you completed so far?

 

[Elksgrove]

OK steps so far
1. I have resigned and gave notice that i would be requesting access to my LSL for domestic necessity
2. Payment of LSL was rejected by my employer
3. a letter of demand was sent and i contacted NSW IR
4. NSW IR investigated the claim and said they believed i couldn't meet the burden of proof for domestic necessity. I only found Donnelly vs Maitland Railway after NSW IR had communicated their findings to me and my employer

We are now moving to small claims court and that is why i am asking what do i need to do to meet the burden of proof? I feel i meet the criteria outlined in cases i have found. I feel it should be enough to refer to Donnelly vs Maitland for me to get a ruling in my favour.

I was hoping someone had been through similar and could help with some advice

 

[Rod]

Found this case tonight: Stockwell International Pty Ltd v Solyali [2014] NSWIC 7

It is a good judgment. Even though the case was about illness, the principles the court uses to arrive at their decision are the same as for a domestic cause.

I feel it should be enough to refer to Donnelly vs Maitland for me to get a ruling in my favour.

No.

You put forward all your evidence as well as referring to the case and why your facts are the same as the case.

The key documents will be your resignation letter, followed by evidence of your pregnancy and birth of new child, birth certificates of your other kids, and your letter of demand. If your kids have any special needs list them and provide doctor's reports.

Do not skimp on the work you need to do. Suspect you'll need a summary, chronology of relevant facts, and I think an affidavit. I'm not familiar with NSW courts so not sure what they expect.

Include in your request for pro-rata super, a costs order against the other party. If you do not ask, you do not get. No guarantee you'll get an order but worth while asking.

 

[Elksgrove]

Thank you for all your help. What i am still unable to determine is "is my domestic necessity" of staying home to raise my child the same as that shown by Donnelly vs Maitland? I cant seem to find the specific information about that ruling. Assuming all other information/evidence is in place is the ruling in Donnelly precedent enough?