Redundancy When 2 Months Away from Being Able to Access LSL ?

swilso on 05/05/2015 - 06:54
Last edited 18/05/2015 - 07:02

UPDATE: unfortunately the company has given written notice with redundancy pay notifications. Sucks as her job really worked in well with our new family life at the moment so we didn't want to lose that. Also just a kick in the guts being only 2months away from my wife's entitlement to her leave. I'm encouraging my wife to write a positive letter to plea for them to reconsider her redundancy in this special case but she doesn't want to cause trouble. Seems like the only thing left she can try. I should have also mentioned we are in QLD, it is a NSW based company but I think that is irrelevant as the conditions are based on what state you are working in …

Hi all,

Hoping someone may have had experience in the following circumstances or an idea of how it would work. My wife’s employer is considering closing it’s business in the coming months (I will leave the name of the employer out) but they have several businesses across a couple of states, listed on the ASX and turn over a few million in profit annually.

Unfortunately the one she works for hasn’t been turning over a healthy profit and have proposed to close up however it isn’t definite yet – but should they go ahead they did propose a date that they would. This date is literally just less than 2 months from my wife being able to access her Long Service Leave (LSL) pro rata at the completion of her 7th year with them. She has questioned management about what would happen with her LSL but they’re not sure and couldn’t comment and are awaiting to hear back from their head office. I’d just like to know whether, legally, she should be paid her LSL on top of her redundancy pay? Or if she isn't could she contest the redundancy pay in court proving her loyal dedication for the last 7 years having close to 300hours in sick leave and quite a lot of weeks in annual leave.

I’ve had a read of the Fair Work Ombudsman article but it doesn’t really say in this specific case what would happen only that if eligible for LSL it will be paid out. This is the link: http://www.fairwork.gov.au/about-us/policies-and-guides/fact…

Thanks in advance.

Education & Work

Comments

  • mskeggs on 05/05/2015 - 07:15
    +2

    I was going to answer this based on my understanding, but realised that LSL laws are state based. The QLD LSL site has this in bold at the top:
    Please direct your long service leave enquiries to the IR infoline on (07) 3225 2299.
    I reckon a quick call would put your mind at ease better than a heap of message board posts.
    https://www.business.qld.gov.au/business/employing/employee-…

  • [Deactivated] on 05/05/2015 - 09:13

    After reading your post I realised that each state must have different Long Service Leave conditions. Victoria used to be 5 years before they would pay pro rata, but they might have changed it since I left the workforce.

    • sparkles on 05/05/2015 - 12:20

      The pro rata minimum used to be seven years in VIC. I know this for certain as I received this. However according to the website calculators it's now:

      • 13 weeks leave for 15 years of continuous employment
      • Eight and two thirds at 10 years
      • Four and one-third weeks leave for five years.
  • mrmarkau67 on 05/05/2015 - 09:47
    +3

    She should talk to her Union.

    • [Deactivated] on 05/05/2015 - 14:17
      +3

      being downvoted for being right. the site never ceases to amaze me :)

      • mrmarkau67 on 05/05/2015 - 14:25

        Well,

        EITHER

        You downvoted me and then posted a reply in support just to mess with my head.

        OR

        The person who downvoted me is a gutless coward who isn't willing to put up an argument in support of their case.

        I guess I'll never know ;-)

        • mrmarkau67 on 05/05/2015 - 14:26

          Oops. Just realised how the "comment votes" link works. I guess I do know. But maybe I did already.

        • [Deactivated] on 05/05/2015 - 14:44
          -1

          you were on -2 for some stupid reason, with mine was -1. now someone has put it back to normal

          not that magic internet points matter. yours is the best advice in the whole thread.

    • PVA on 05/05/2015 - 14:37

      exactly.

  • purplelady on 05/05/2015 - 11:15

    I can be wrong, but my work accountant said that in NSW, as long as the company has > 15 or 20 employees (I cant remember which one), they have to pay LSL once the employee passes 5 years. So if she's worked for 7 years, then she's entitled for 7 years/10 years x LSL amount pay. EXCEPT if she resigns herself. I guess you can try ring up Fair Work Australia?

    • Mummy2 on 05/05/2015 - 17:31

      Just FYI, not applicable to OP's situation and different state anyway:
      In WA you get the pro-rata LSL even if you resign yourself (If you resign, are dismissed (except for serious misconduct) or made redundant, you are entitled to be paid out long service leave http://www.commerce.wa.gov.au/labour-relations/long-service-…).

      • purplelady on 06/05/2015 - 09:11

        woah… i should move there lol

  • iratepirate on 05/05/2015 - 12:11

    I was in the exact same situation as your wife made redundant after 6 years and 10 months and I live in QLD.

    Sorry to say I never got my LSL - They did it on purpose and laughed in my face when I brought it up.

  • [Deactivated] on 05/05/2015 - 14:30

    I was working for my NSW based job for just over 7 years before I got the sack, got paid full long service leave :)

    (if you quit you dont get it…. wink wink)

  • PVA on 05/05/2015 - 14:36
    +1

    as Mr Mark mentioned above, start talking to her union now.

  • coolhead on 05/05/2015 - 14:48

    give a call to slator and gordon and ask them if they can help.. they wont charge for first consultation and will tell you upfront if its worth pursuing or not..

  • swilso on 05/05/2015 - 18:36

    Thanks for the replies. Ringing the union would be the next step.

    The Industrial Relations ombudsman (QLD) said it is 7 even if you were one day off and made redundant you would not be eligible to cash out pro rata. Sucks as she has enough annual leave to get her through to access her LSL, I thought that may have meant something, obviously not.

    • iratepirate on 05/05/2015 - 20:01

      For redundancy she must be given two weeks notice at least or be payed in lieu.

      If she is on annual leave when they announce the closing then that time doesn't count as part of the two weeks notice…

      If she puts in for annual leave now and can take it all she will get her LSL as well.

      • mrmarkau67 on 05/05/2015 - 20:42

        That sounds clever. In any case, I recommend communicating at all times in a very positive and helpful tone. The chances are that there are some individuals in the decision making chain that would love to pay out the full pro-rata amount, and others who would rather keep it to help their bottom line. Try to give the managers with integrity plenty of reason to pay out. Stay hopeful and positive. All the best!

  • siraitken on 06/05/2015 - 09:36

    You need to call the state's LSL department.

    If she is being made redundant because the company is not viable then I don't think she has a claim.
    The company can not continue to operate just so their employees receive entitlements.

    If she has had any unpaid leave ie maternity leave then this may be discounted off her years of service for the purpose of paying LSL.
    This is the case in VIC but I am not sure with the other states.
    An EBA/AWA/Modern Award may override the minimum provisions provided by the National Employment Standards but it depends on her company and her position.

  • Natt on 11/05/2015 - 10:32

    Did she do any work for a previous business that the current owner took over? If they inherited her from themain she could have some sort of continuity of service even if she was told to start as new

  • swilso on 18/05/2015 - 07:01

    UPDATE: unfortunately the company has given written notice with redundancy pay notifications. Sucks as her job really worked in well with our new family life at the moment so we didn't want to lose that. Also just a kick in the guts being only 2months away from my wife's entitlement to her leave. I'm encouraging my wife to write a positive letter to plea for them to reconsider her redundancy in this special case but she doesn't want to cause trouble. Although it Seems like that's the only thing left she can try. I should have also mentioned we are in QLD, it is a NSW based company but I think that is irrelevant as the conditions are based on what state you are working in …

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