QLD Redundancy and long service leave owing at redundancy

[Cairns123]

Hi,
I am self representing in family court - together very long time. Property split will be based solely on financial resources.

The trial judge required me to submit case law, if any precidents and any legislation that shows my ex is entitled (my ex said they are not going to get any) both redundancy and long service leave.
Ex says there is no redundancy or long service leave being paid to them.
My accountant advised me that Australian law shows that there is an entitlement owing.

The court won’t accept my ato and Australian Fair work print outs offline and wants legislation and case laws and precedents or something to that effect I think was said.

Ex was made redundant at 9+ years in senior management roles (3 to be exact all at the same time).
The ex made redundant mid this yr effective early 2018.
10yrs service anniversary is late next yr.
The company moving interstate. The ex is unable to leave to move with the company.
The ex admitted in court they are going to get a abn and contract work when the redundancy becomes effective.

 

[Rod]

Sounds like you requested discovery and ex said there is nothing to declare.

Have you sought to subpoena your ex's employer and the ATO for all records and correspondence regarding her termination/redundancy? Depending on seniority there are ways to hide 'payments'. I'd also be subpoenaing the employer for the employment contract.

I can understand the court's position in that they cannot and should not apply general entitlements to specific circumstances unless there is evidence of some 'under-the-table' benefit designed to avoid Family Court scrutiny.

I assume you mean '...effective early 2019'.

I had a quick look for any cases similar to what you want but didn't find any. I suggest subpoenas are the better way to go because the information you get back should tell you exactly what you need to know.

 

[Cairns123]

Thanks Rod, tried to subpoena them; they wanted $35000 to comply and would then go for costs
So I had to withdraw it
My understanding is you cannot subpoena ATO as they have immunity.
I’ll call and ask them for the legislation I guess.
Old friends - as in 30 yrs are his bosses

Sounds like you requested discovery and ex said there is nothing to declare.


Have you sought to subpoena your ex's employer and the ATO for all records and correspondence regarding her termination/redundancy? Depending on seniority there are ways to hide 'payments'. I'd also be subpoenaing the employer for the employment contract.

I can understand the court's position in that they cannot and should not apply general entitlements to specific circumstances unless there is evidence of some 'under-the-table' benefit designed to avoid Family Court scrutiny.

I assume you mean '...effective early 2019'.

I had a quick look for any cases similar to what you want but didn't find any. I suggest subpoenas are the better way to go because the information you get back should tell you exactly what you need to know.

 

[Rod]

$35,000 sounds like a rip-off to me.

Only 'reasonable costs' can be recovered and then subject to the court's agreement.

Maybe limit your demand to particular documents - eg employment contract, termination agreement, super payments made in last 2 years.

re: ATO. Hmm looks like you might be right. From ATO site:

Non-tax law subpoenas
In all non-tax law disputes, under the tax confidentiality provisions we can't be required to comply with a subpoena for anyone's tax information and we can't disclose your tax information under subpoena. See Division 355 of Schedule 1 to the Taxation Administration Act 1953.

If we are served with a subpoena ordering us to disclose tax information, we will contact the subpoenaing party and the court and explain why we can't comply. We may ask the court to order you to pay our costs if the subpoena is not withdrawn.

Non-tax law disputes include:

family breakdown
personal injury claims
contractual disagreements.
​

Super is another way of hiding benefits. Have you got all the superannuation statements?

 

[Cairns123]

I can’t subpoena anything, I’ve got to write a property final submission and the judge specifically asked for legislation on redundancy and long service leave owed at redundancy.
I’ve talked to accountants and found all the info that all say the same thing - they by law it is payable no matter the contract or which field of employment but in legal speak I don’t know where to find any of it that the judge will accept and the other party decides before the judge even sees it that it’s inadmissible and the judge accepts the barristers scoffing at the ATO website stuff I printed out.

Rod I’ve got social communication disorder (like Aspergers on the old asd scale I think), ADHD, major depression and anxiety
I was unable to speak in court adequately, my brain and body just shut down

I’ve never in my life had the emotional overload, physical overload and inability to speak or even think clearly, depth of shut down as much as I’ve had the last 12 months with hearing after hearing and case outlines, case summaries, then I had my affidavit and evidence ready for the last 12 months, learning it and practising but they ordered new Affidavits a month out and all my page numbers had to be redone because I couldn’t resubmit the original.

I’m theres way way more going on than just redundancy and long service leave - that’s just the tip of the island, but it’s the only thing I can address in the timeframe provided I think.

$35,000 sounds like a rip-off to me.

Only 'reasonable costs' can be recovered and then subject to the court's agreement.

Maybe limit your demand to particular documents - eg employment contract, termination agreement, super payments made in last 2 years.

re: ATO. Hmm looks like you might be right. From ATO site:

Non-tax law subpoenas
In all non-tax law disputes, under the tax confidentiality provisions we can't be required to comply with a subpoena for anyone's tax information and we can't disclose your tax information under subpoena. See Division 355 of Schedule 1 to the Taxation Administration Act 1953.

If we are served with a subpoena ordering us to disclose tax information, we will contact the subpoenaing party and the court and explain why we can't comply. We may ask the court to order you to pay our costs if the subpoena is not withdrawn.

Non-tax law disputes include:

family breakdown
personal injury claims
contractual disagreements.
​

Super is another way of hiding benefits. Have you got all the superannuation statements?

 

[Rob Legat - SBPL]

Here’s what you need for the long service leave issue.

In terms of legislation:

- You want the Queensland Industrial Relations Act 2016. A full copy of the Act can be found here: View - Queensland Legislation - Queensland Government

Take printed copies of the relevant section(s) you want – don’t take the whole Act unless you feel like printing a lot of paper. While a lawyer will most probably do that in case the judge throws out a ‘what about section x?’ type question, that would require the ability to consider legislation on the fly and I don’t suggest you attempt that lightly.

- The relevant section is section 95 – “Entitlement – Employees other than seasonal” which is in Division 9 – Long Service Leave. The relevant parts of the section in your instance appear to be:

“(1) This section applies to an employee, other than a seasonal employee.

…

(2) The employee is entitled to long service leave, on full pay, of –

(a) if the employee has completed 10 years continuous service – 8.6667 weeks; …

(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long serve leave on the termination of the employee’s service.


(4) However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if –

…

(c) the termination is because the employer –

(i) dismisses the employee for a reason other than the employee’s conduct, capacity or performance…

…

(7) In this section –

“proportionate payment” means a payment equal to the employee’s full pay for a period that represents the same proportion of 8.6667 weeks that the employee’s period of continuous service bears to 10 years.”

- If the argument becomes that he resigned instead of was terminated, then section 95(4)(b)(ii) applies as proportionate long service leave is still payable if the employee terminates their service due to “domestic or other pressing necessity” – which would be the inability to relocate.

Next, in terms of case law, there are the following cases which appear relevant. I suggest printing out the whole of each case to hand up to the judge:

1. If there is any argument as to whether the Queensland Industrial Relations Act applies (which there shouldn’t be), then the case of Sally Anne Richards AND Dump Truck Pty Ltd (B/2010/13) [2010] QIRComm 121 - http://www6.austlii.edu.au/au/cases/qld/QIRComm/2010/121.pdf

This case provides that sections 26 and 27 operate to provide that long service leave is determined by reference to the Queensland Act. It referred to the previous version of the Act, but the same principle applies.


2. For termination by the employer, a ‘constructive dismissal’ (such as where the employee agrees to take a redundancy or resign) falls within the meaning of the word ‘dismiss’: Cook v CFP Management Pty Ltd [2006] QCA 215 - Cook v CFP Management Pty Ltd [2006] QCA 215 (16 June 2006)

3. For termination by the employee because of ‘domestic or other pressing necessity’ then:

- Vermeer v Montague Fresh Qld Pty Ltd [2007] QIRComm 38- Vermeer v Montague Fresh Qld Pty Ltd [2007] QIRComm 38; 185 QGIG 220 (25 June 2007)

In this case the Queensland Industrial Relations Commission adopted the MacQuarie Dictionary definition of ‘domestic’ as being ‘pertaining to the home, the household, or household affairs’, and ‘pressing’ as ‘something necessary or indispensable’. An inability to relocate their home would appear to satisfy these requirements.

- Queensland Independent Education Union of Employees (on behalf of Wendy Helen Andersen) v Marchant Park Kindergarten Association Inc [2008] QIRComm 110 - QIEU v Marchant Park Kindergarten [2008] QIRComm 110 (2 May 2008)

As an example, in this case it was accepted that a requirement to give up work to care for elderly parents satisfied the ‘domestic or other pressing necessity’ requirement.

- Another successful example was for circumstances where the employee needed to care for a child and there was no child care available: Toni O’Keefe v Queensland Diagnostic Imaging Pty Ltd [2009] QIRComm 74 - Toni O'Keefe v Queensland Diagnostic Imaging Pty Ltd [2009] QIRComm 74; 192 QGIG 93 (18 September 2009)

- Also successful was an employee’s resignation out of a desire for certainty and employment producing a regular and sufficient income where there was an inability to obtain that certainty from the employer: Melanie Saxby, Department of Justice and Attorney-General AND Southern Downs Security Pty Ltd (B/2009/69) [2010] QIRComm 93 - http://www.austlii.edu.au/au/cases/qld/QIRComm/2010/93.pdf

 

[Cairns123]

Omg Rob
How can I repay you.
The company moved interstate lock stock and barrel
He didn’t want to move interstate
They had 100+ full time employees
Made all redundant except a few and he’s one that was made redundant in a letter sent July 2018 but not effective until March 2019.
He’s confirmed he’s losing his employment to court, they also have him housing and vehicles and a lot more. He has been full time since oct 2008 continuous.
What you said is the same advice I had but I can’t tell you the legal speak is things I can’t find online.
Thankyou so so very much
I volunteer a lot for kids with disabilities, have done for 20++ years helping families; you’ve paid me back in spades what I’ve done for those families. Thankyou
Thankyou
It’s Goliath vs me.
I desperately need legal advice but have used all my money preparing for the ndis and court and I Home school one of our children with disabilities, so a lot going on for me. A lot more than that.

Here’s what you need for the long service leave issue.

In terms of legislation:

- You want the Queensland Industrial Relations Act 2016. A full copy of the Act can be found here: View - Queensland Legislation - Queensland Government

Take printed copies of the relevant section(s) you want – don’t take the whole Act unless you feel like printing a lot of paper. While a lawyer will most probably do that in case the judge throws out a ‘what about section x?’ type question, that would require the ability to consider legislation on the fly and I don’t suggest you attempt that lightly.

- The relevant section is section 95 – “Entitlement – Employees other than seasonal” which is in Division 9 – Long Service Leave. The relevant parts of the section in your instance appear to be:

“(1) This section applies to an employee, other than a seasonal employee.

…

(2) The employee is entitled to long service leave, on full pay, of –

(a) if the employee has completed 10 years continuous service – 8.6667 weeks; …

(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long serve leave on the termination of the employee’s service.


(4) However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if –

…

(c) the termination is because the employer –

(i) dismisses the employee for a reason other than the employee’s conduct, capacity or performance…

…

(7) In this section –

“proportionate payment” means a payment equal to the employee’s full pay for a period that represents the same proportion of 8.6667 weeks that the employee’s period of continuous service bears to 10 years.”

- If the argument becomes that he resigned instead of was terminated, then section 95(4)(b)(ii) applies as proportionate long service leave is still payable if the employee terminates their service due to “domestic or other pressing necessity” – which would be the inability to relocate.

Next, in terms of case law, there are the following cases which appear relevant. I suggest printing out the whole of each case to hand up to the judge:

1. If there is any argument as to whether the Queensland Industrial Relations Act applies (which there shouldn’t be), then the case of Sally Anne Richards AND Dump Truck Pty Ltd (B/2010/13) [2010] QIRComm 121 - http://www6.austlii.edu.au/au/cases/qld/QIRComm/2010/121.pdf

This case provides that sections 26 and 27 operate to provide that long service leave is determined by reference to the Queensland Act. It referred to the previous version of the Act, but the same principle applies.


2. For termination by the employer, a ‘constructive dismissal’ (such as where the employee agrees to take a redundancy or resign) falls within the meaning of the word ‘dismiss’: Cook v CFP Management Pty Ltd [2006] QCA 215 - Cook v CFP Management Pty Ltd [2006] QCA 215 (16 June 2006)

3. For termination by the employee because of ‘domestic or other pressing necessity’ then:

- Vermeer v Montague Fresh Qld Pty Ltd [2007] QIRComm 38- Vermeer v Montague Fresh Qld Pty Ltd [2007] QIRComm 38; 185 QGIG 220 (25 June 2007)

In this case the Queensland Industrial Relations Commission adopted the MacQuarie Dictionary definition of ‘domestic’ as being ‘pertaining to the home, the household, or household affairs’, and ‘pressing’ as ‘something necessary or indispensable’. An inability to relocate their home would appear to satisfy these requirements.

- Queensland Independent Education Union of Employees (on behalf of Wendy Helen Andersen) v Marchant Park Kindergarten Association Inc [2008] QIRComm 110 - QIEU v Marchant Park Kindergarten [2008] QIRComm 110 (2 May 2008)

As an example, in this case it was accepted that a requirement to give up work to care for elderly parents satisfied the ‘domestic or other pressing necessity’ requirement.

- Another successful example was for circumstances where the employee needed to care for a child and there was no child care available: Toni O’Keefe v Queensland Diagnostic Imaging Pty Ltd [2009] QIRComm 74 - Toni O'Keefe v Queensland Diagnostic Imaging Pty Ltd [2009] QIRComm 74; 192 QGIG 93 (18 September 2009)

- Also successful was an employee’s resignation out of a desire for certainty and employment producing a regular and sufficient income where there was an inability to obtain that certainty from the employer: Melanie Saxby, Department of Justice and Attorney-General AND Southern Downs Security Pty Ltd (B/2009/69) [2010] QIRComm 93 - http://www.austlii.edu.au/au/cases/qld/QIRComm/2010/93.pdf

 

[Rod]

OK.

Then the redundancy becomes a resource until it is received.

 

[Cairns123]

Yes I thought so
You guys are the absolute most kind hearted
Thankyou

 

[Cairns123]

Rod same for long service leave?