VIC Unpaid Long service leave and Annual leave

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Zoe10

Active Member
27 September 2017
10
0
31
My employment has recently ended after being terminated after 25 years continual service. I have not been paid out my Annual leave and Long Service Leave (LSL), totaling around thirty thousand dollars. My employer provided me with twelve weeks notice (they said as per the Fair Work Act) when terminating my employment and I was not made redundant. My employer stated in my termination letter that my LSL and Annual leave will be paid by EFT when my employment ends. I also have a separation certificate that my employer filled out with my annual leave and LSL amounts owing to me when my employment ends.

I was not under any contract and I am covered under a state award for my LSL. I have called the Fair Work Ombudsman who has referred me to Business Victoria and who has also advised me to contact my employer via email with a "Letter of Demand" for my entitlements to be paid within seven days.

Any advice and suggestions of how to recover my entitlements would be appreciated.
 

Clancy

Well-Known Member
6 April 2016
973
67
2,289
Also were you lawfully terminated according to the procedures stated in the award?

Anyway, give the letter of demand as instructed then if they don't pay, go back to the Fair Work Ombudsman. They should not be passing the buck, its their job to deal with this!
 

Zoe10

Active Member
27 September 2017
10
0
31
Also were you lawfully terminated according to the procedures stated in the award?

Anyway, give the letter of demand as instructed then if they don't pay, go back to the Fair Work Ombudsman. They should not be passing the buck, its their job to deal with this!
Thank you Clancy for your reply.

With your question, what procedures stated in the award do you mean? I was involved in a family business, but an employee of the company. I was not provided with any reason for my termination, other than on my separation certificate, the box is ticked that states "end of season work/contract". My brother wanted me terminated.
I will serve the letter of demand as advised and see what happens. The Fair Work ombudsman office told me that as I am not covered under an award or agreement, they cannot deal with my LSL.
 

Clancy

Well-Known Member
6 April 2016
973
67
2,289
Thank you Clancy for your reply.

With your question, what procedures stated in the award do you mean? I was involved in a family business, but an employee of the company. I was not provided with any reason for my termination, other than on my separation certificate, the box is ticked that states "end of season work/contract". My brother wanted me terminated.
I will serve the letter of demand as advised and see what happens. The Fair Work ombudsman office told me that as I am not covered under an award or agreement, they cannot deal with my LSL.
Well ok, so what was your original employment contract 25 years ago?

It must have been updated a few times over the years? What is the most recent employment contract that you signed? If you do not have a valid signed employment contract then you default to being under an award i would imagine?
 

Zoe10

Active Member
27 September 2017
10
0
31
Well ok, so what was your original employment contract 25 years ago?

It must have been updated a few times over the years? What is the most recent employment contract that you signed? If you do not have a valid signed employment contract then you default to being under an award i would imagine?
I don't believe I have ever had one, well at least a valid signed one. Yes I understand in speaking with Industrial Relations Victoria that as an employee with no award or signed contract of employment, that I default to and I am covered under the state award in Victoria and I am entitled to nearly 22 weeks LSL at my weekly pay. So now to send a demand letter and then .....?
 

Clancy

Well-Known Member
6 April 2016
973
67
2,289
I don't believe I have ever had one, well at least a valid signed one. Yes I understand in speaking with Industrial Relations Victoria that as an employee with no award or signed contract of employment, that I default to and I am covered under the state award in Victoria and I am entitled to nearly 22 weeks LSL at my weekly pay. So now to send a demand letter and then .....?
Not just that, you have a case for unfair dismissal too!

I mean, if there really is no signed contract then you have got them by the balls, honestly, its probably well worth getting a lawyer!!
 

Zoe10

Active Member
27 September 2017
10
0
31
Not just that, you have a case for unfair dismissal too!

I mean, if there really is no signed contract then you have got them by the balls, honestly, its probably well worth getting a lawyer!!
Can you please explain why I would have a case for unfair dismissal? as in the previous advice I have sought, I have been advised that I do not. As they are a small business (with over 20 employees), they can dismiss me for any reason with notice and pay in lieu. Additionally, as I the Fair Work Act only provides a maximum of 26 weeks pay, I could not go down that path as my LSL and the 12 weeks notice paid, is above that. The Fair Work ombudsman said that they only need to provide me with 5 weeks notice, but they have provided me with 12 weeks notice and potentially they could with hold 7 weeks of my LSL leave??

Are you able to recommend a lawyer that is reasonable?
 

Clancy

Well-Known Member
6 April 2016
973
67
2,289
Can you please explain why I would have a case for unfair dismissal? as in the previous advice I have sought, I have been advised that I do not. As they are a small business (with over 20 employees), they can dismiss me for any reason with notice and pay in lieu. Additionally, as I the Fair Work Act only provides a maximum of 26 weeks pay, I could not go down that path as my LSL and the 12 weeks notice paid, is above that. The Fair Work ombudsman said that they only need to provide me with 5 weeks notice, but they have provided me with 12 weeks notice and potentially they could with hold 7 weeks of my LSL leave??

Are you able to recommend a lawyer that is reasonable?
How it works is this.... now because you have no signed contract, you have to default to the award correct? In the award, i would expect it has specific instructions on how employment is to be terminated? Usually you should be given warning letters etc etc or it will specify more serious type of offenses that demand immediate termination (something such as illegal drug use etc).

Going by what you say, i am assuming they have not followed those procedures, and hence why you have an unfair dismissal case.