Unfair dismissal and long service leave

There will be occasions when the proximity of the gaining of an entitlement to long service leave may render a dismissal relevantly unfair, and there are occasions when it does not. In the unfair dismissal case from which the following extract is taken it did not.

“Mr Petz submits that his dismissal was harsh because had he worked another six weeks he would have qualified for pro rata long service leave under South Australian law (pro rata arises after seven years continuous service).

Whilst this frustration explains in part Mr Petz’s anger with his dismissal (and its terms) and the reason for this litigation, it is not a basis on which to conclude that his dismissal was harsh.

The time frame for qualification for pro rata long service leave is set by the parliament of South Australia, not by Jamieson.

There is no evidence that Jamieson was in any way influenced by the forthcoming anniversary date of Mr Petz’s seventh year (4 June 2020). I accept Mr Saddler’s evidence that he, as a relatively new Operations Manager, was unaware of that fact. There is no evidence that Mr Saddler or any other member of the management group took that issue into account.

Viewed objectively, without more, the approaching near anniversary of an employee’s pro rata entitlement cannot transform a dismissal for a valid reason into an unfair dismissal. 17 Whilst it is conceivable that an unscrupulous employer may rush an investigation to dismiss in advance of an anniversary date in order to avoid a pro rata obligation (and thereby act unfairly) that is not what occurred here. Apart from the fact that Mr Saddler did not know of the anniversary date, the investigation was not rushed. The investigation of the events of 5 April 2020 occupied at least a fortnight; that was more than sufficient time for Jamieson to get to the bottom of the matter in a fair way. It was not distracted by issues of pro rata rights.”

Petz v Jamieson Sales and Service Pty Ltd  (2020) FWC 4451 delivered 26 August 2020 per Anderson DP