Australian Business Ltd News
 Gordon
Meggatt
The Write Advice
Overseas Service
Electrical engineer Gunther Werner approached HR Manager, Jennifer Howlett, with his letter of resignation as he had gained employment with another company.
Werner had been employed with the Australian arm of this multi-national company for just over seven years, but had 10 years employment at head office in Germany prior to his transfer to Australia. Werner queried his entitlement to long service leave because of his combined service of over 17 years with the company.
Howlett said: "Gunther, I don't think you're entitled to long service leave on termination as you have only served seven years in Australia. Long service leave doesn't apply in Germany so your service there wouldn't count."
Werner responded, "I rang the State Department's award enquiries number and they say I may have an entitlement because of my total service with the same company."
Howlett said, "That sounds odd to me. I'll make a few enquiries but I don't like your chances."
Question: Does Werner have an entitlement to long service leave under the circumstances?
Answer: It is possible for an employee to continue to be regarded as an employee within NSW for the purposes of the NSW Long Service Leave Act even though a considerable period of time is spent outside the jurisdiction.
However, there is no fixed period, or method of calculating how long one can remain outside the jurisdiction without losing the benefits of the legislation.
The NSW Industrial Relations Commission has, in a small number of cases, determined that overseas service may count for the purposes of calculating an employee's long service leave.
An important factor in the above scenario would be whether the employee was transferred to Australia by the company or the employee resigned in Germany and consequently obtained employment with the same company on arrival in Australia.
If the former, there is an argument there was continued employment with the company or a related company. If the latter, it could be argued that the employment in Australia was a new engagement and that the employee resigned from their previous position in Germany, hence no continuity of employment.
There would also need to be a "substantial connection" with NSW. Seven years service could satisfy this requirement. Also, with the employment being terminated in NSW, this means that the event occurred within the jurisdiction of the Long Service Leave Act and a claim could be made by the employee.
- You can contact Manager of Member Advice, Paul Munro, at Australian Business on 13 26 96 if you have any queries or need advice on similar legal matters.
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