Some claims for long service may relate to periods of time that have long passed. For example, an employee may resign and, at the time, not be paid pro-rata long service leave. However, some time later, the employee claims they had to resign because of a “domestic or pressing necessity” – a reason that would qualify the employee to be paid if they had accrued enough service with the employer to be eligible.  

The answer regarding time limits will depend on provisions of the relevant state or territory long service leave legislation.  

 

NSW and Victoria 

Section 12 of the NSW Long Service Leave Act 1955 provides that a person may apply to the Local Court or Industrial Relations Commission of NSW for an order directing the employer to pay the amount claimed.

A claim can encompass all entitlements falling due in the period of six years immediately preceding the date of application to the court or tribunal. 

In Victoria, the time limit is also six years, as per s26 of the VIC Long Service Leave 2018. 

This means an employee has six years after the date of termination of the employment in which to make an application to the appropriate tribunal to recover payment of long service leave in New South Wales. 

However, an employee needs to provide the necessary evidence to substantiate a claim that the main or sole reason for termination was due to a “domestic or pressing necessity”. If proven, the employee would have an entitlement to pro-rata leave on termination because he/she was continuously employed by the company for at least five years. 

 

Domestic or pressing necessity 

In the context of the Act, “domestic or pressing necessity” means the existence of a state of affairs such as to compel or necessarily require the employee to terminate their employment. 

The tests that courts and tribunals have generally applied in attempting to assess the validity of an employee’s claim of domestic or other pressing necessity are: 

  • Was such a reason genuinely held by the employee and not simply colourable or a rationalisation? 
  • The reason claimed may not be the sole ground that influenced the employee to resign, but was it the real or motivating reason? 
  • Was the reason such that a reasonable person, in the circumstances, might have felt compelled to terminate their employment?