QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Hoveydai v Nixon Pacific Pty Ltd [2024] QIRC 148

PARTIES:	
	Hoveydai, Naghmeh
Applicant

v

Nixon Pacific Pty Ltd
Respondent
	
CASE NO:
	B/2024/19
	
PROCEEDING:
	Application for payment of pro rata long service leave 

DELIVERED ON:
	14 June 2024
	
HEARING DATE: 
	10 June 2024
	
MEMBER:

HEARD AT:	Pratt IC

Brisbane

ORDERS:
	1.	The Application is granted.

2.	Within 14 days of the date of this decision, the Respondent is to pay to the Applicant the sum of $11,419.50, less applicable tax.
	
CATCHWORDS:	INDUSTRIAL LAW – PRO RATA LONG SERVICE LEAVE – DOMESTIC OR OTHER PRESSING NECESSITY – application for payment of pro rata long service leave pursuant to sections 475 and 476 of the Industrial Relations Act 2016 (Qld) – where applicant worked for respondent for eight and a half years – where applicant claims she resigned because of a domestic or other pressing necessity within the meaning of section 95(4)(b)(ii) of the Industrial Relations Act 2016 (Qld) -  consideration of nature of a "domestic or other pressing necessity" – consideration of the test laid out in  Australian Workers Union of Employees, Queensland v Sunshine Coast Private Hospital (2003) 172 QGIG 1097 – where applicant primary caregiver for aging and ailing mother – where mother needed the applicant's assistance – where applicant needed to work from home to assist mother – where respondent provided hybrid working arrangement but applicant unable to attend in-office hours required in the hybrid working arrangement – situation eventually became untenable – where applicant resigned to take care of mother – where respondent not told that the applicant resigned because of care responsibilities – where applicant told respondent that she resigned to pursue other job opportunities – whether "domestic or other pressing necessity" within the meaning of section 95(4)(b)(ii) of the Industrial Relations Act 2016 (Qld) existed – following of the test laid down in Australian Workers Union of Employees, Queensland v Sunshine Coast Private Hospital (2003) 172 QGIG 1097 – held "domestic or other pressing necessity" within the meaning of section 95(4)(b)(ii) of the Industrial Relations Act 2016 (Qld) existed – whether applicant resigned for a "domestic or other pressing necessity" within the meaning of section 95(4)(b)(ii) of the Industrial Relations Act 2016 (Qld) – held applicant resigned for a "domestic or other pressing necessity" within the meaning of section 95(4)(b)(ii) of the Industrial Relations Act 2016 (Qld) – consideration of stated reason for resignation given to the respondent where different to actual motivating reason for resignation.
	
LEGISLATION:

CASES:	Industrial Relations Act 2016 (Qld) s 95, s 475, s 476.

Australian Workers Union of Employees, Queensland v Sunshine Coast Private Hospital (2003) 172 QGIG 1097.

Computer Sciences of Australia v Leslie (1983) 83 AR (NSW) 828

O'Keefe v Queensland Diagnostic Imaging Pty Ltd (2009) 192 QGIG 93

Queensland Independent Education Union of Employees (on behalf of Wendy Anderson) v Marchant Park Kindergarten Association Incorporated [2008] 188 QGIG 22.

Simmons v Uniting Church in Australia Property Trust (Q.) represented by Uniting Care Health [2021] QIRC 242

Transport Workers Union (Queensland Branch) v Linfox Australia [2018] ICQ 001.

Vermeer v Montague Fresh Queensland Pty Ltd [2007] 185 QGIG 220.
	
APPEARANCES:	Miss Naghmeh Hoveydai, the applicant in person.

Mr Martin Rafferty for Nixon Pacific Pty Ltd.

Reasons for Decision

[1]	Miss Hoveydai ('the Applicant') applies for orders rectifying an alleged underpayment of $11,419.50 of long service leave payments by Nixon Pacific Pty Ltd ('the Respondent') pursuant to sections 475 and 476 of the Industrial Relations Act 2016 (Qld) ('IR Act'). The Applicant says she is entitled to proportionate payment of long service leave pursuant to section 95 of the IR Act because she has more than seven, but less than ten, years of service with the Respondent and she resigned from her employment with the Respondent because of "a domestic or other pressing necessity."

[2]	The Respondent disputes that that was why the Applicant resigned. Instead, the Respondent argues that the Applicant resigned simply to find another job. In support of that point, the Respondent cites the Applicant's resignation email of 12 February 2024 where the Applicant says that she has "decided that it is in my best interest to pursue new challenges and opportunities elsewhere."

The issue

[3]	The issue I must determine is whether the Applicant resigned from her employment with the Respondent because of a "domestic or other pressing necessity" within the meaning of section 95(4)(b)(ii) of the IR Act.

Relevant law

Relevant legislation

[4]	Section 95 of the IR Act says:

(1) This section applies to an employee, other than a seasonal employee.

Note—
For provisions applicable to seasonal employees, see subdivisions 7 and 8 .

(2) The employee is entitled to long service leave, on full pay, of—

(a) if the employee has completed 10 years continuous service—8.6667 weeks; and

(b) after 10 years service, if the employee has completed at least a further 5 years continuous service—a period that bears to 8.6667 weeks the proportion that the employee’s further period of continuous service bears to 10 years.

(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee’s service.

(4) However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—

(a) the employee’s service is terminated because of the employee’s death; or

(b) the employee terminates the service because of—
(i) the employee’s illness; or
(ii) a domestic or other pressing necessity; or

(c) the termination is because the employer—
(i) dismisses the employee because of the employee’s illness; or
(ii) dismisses the employee for another reason other than the employee’s conduct, capacity or performance; or
(iii) unfairly dismisses the employee; or

(d) the termination is because of the passing of time and—
(i) the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and
(ii) the employee was prepared to continue the employment with the employer.

(5) Long service leave is exclusive of a public holiday that falls during the period of the leave.

(6) An employee who is entitled to long service leave other than under this Act is entitled to leave that is at least as favourable as the entitlement under this section.

(7) In this section—

"illness" includes injury, incapacity or other medical condition.

"proportionate payment" means a payment equal to the employee’s full pay for a period that represents the same proportion of 8.6667 weeks that the employee’s period of continuous service bears to 10 years.

Relevant case law

[5]	In Australian Workers Union of Employees, Queensland v Sunshine Coast Private Hospital, Commissioner Asbury, as her Honour then was, considered a line of authorities on "domestic or other pressing necessity". Commissioner Asbury then cited observations in other cases, and made a number of observations of her own, about the nature of a "domestic or other pressing necessity." Commissioner Asbury noted that the test for whether a "domestic or other pressing necessity" exists is whether the domestic situation was such that a reasonable person might feel compelled to seek its solution by terminating their employment. This effectively requires there to be an objectively serious problem in the home, but there is no need for there to be a dire crisis. This threshold for "domestic or other pressing necessity" is not overly onerous, but taking up alternative employment for the purpose of career advancement or for better pay will militate against the finding that a "domestic or other pressing necessity" was the reason for the termination.

[6]	Based on these observations, Commissioner Asbury then formulated the following questions as lodestars for determining whether there is a "domestic or other pressing necessity":

1.	Was the reason for the termination one which fell within the section?

2.	Was the reason genuine and not simply a rationalisation of another reason which did not fall within the section; or a reason that while having the appearance of truth or right, is in reality a pretence or a perception; or a frivolous reason?

3.	Although the reason claimed may not be the sole ground which caused the employee to make a decision to terminate his or her employment, was it the real or motivating reason?

4.	Did the reason claimed cause the employee to terminate his or her employment?

5.	Did the reason claimed affect the employee in relation to the particular service he or she terminated?

6.	Was the situation which the employee was in at the point of termination one in which a reasonable person might have felt compelled to seek to resolve by terminating his or her employment?

[7]	That decision, and that test, have been followed and applied many times since. In O'Keefe v Queensland Diagnostic Imaging Pty Ltd, Commissioner Asbury, as her Honour again then was, considered a case where the applicant resigned for two reasons. The first was so that she could assist her mother-in-law. The second was so that she could focus on being a mother because the daycare arrangements that the applicant preferred were unavailable. Relevantly, when resigning, the applicant had disclosed the first reason but not the second. Commissioner Asbury held that the applicant's need to care for a child, where childcare acceptable to the applicant was unavailable, was a "domestic or other pressing necessity". Commissioner Asbury further held that the applicant's need to provide support and care for her mother-in-law was also a "domestic or other pressing necessity". Commissioner Asbury also noted that full details of the reason for the resignation may not always be disclosed to the employer at the time and that whether or not such detail was provided to the employer was not determinative.

[8]	In Transport Workers Union (Queensland Branch) v Linfox Australia ('Linfox'), President Martin, as his Honour then was, addressed whether a person is considered to have resigned because of a reason enumerated in the predecessor to s 95 of the IR Act if  the reason for the resignation given to the employer at the time of resignation is not one of those reasons but the true reason for the resignation is one of those reasons. In that case, the employee told the employer that he was resigning so that he could get a "fresh start" following a breakup with his long-time girlfriend. But in actuality, the employee resigned because of a serious psychiatric illness that preceded the breakup. However, the employee had not informed the employer of this illness. The employer refused to pay out any long service leave arguing that the employee had not resigned because of illness or incapacity or due to a domestic or other pressing necessity. The relevant question was the nature of the employee's statement for resigning  where that differed to what the application claimed was the real or motivating reason. His Honour said:

If an employee resigns due to illness, but tells their employer they have done so to find a new line of work, the cause of the termination is the illness. Similarly, where an employee claims to have been suffering an illness, but is found to be healthy, that employee has not terminated their employment because of an illness. They may honestly believe that an illness was the reason for their termination, but that will not render them eligible under the act.

[9]	In Queensland Independent Education Union of Employees (on behalf of Wendy Anderson) v Marchant Park Kindergarten Association Incorporated, her Honour, Deputy President Swan, considered a case where the applicant resigned so she could take up work that allowed her to support her parents and her partner. The parents were unwell and needed support for the transition to an aged care facility, while the partner was suffering from an illness for which he needed support. Her Honour found that the applicant's resignation was because of a domestic or other pressing necessity because the applicant's decision to resign, albeit to find other employment, was motivated by her desire to fulfil her care and support obligations. 

[10]	In Simmons v Uniting Church in Australia Property Trust (Q.) represented by Uniting Care Health, the applicant took up alternative employment closer to home before subsequently resigning from the position she held with the respondent to pursue that employment. Seeking that alternative employment was motivated by the applicant's desire to reduce the cost of her commute and to allow her to better attend to her domestic duties. Those domestic duties were the primary care of her child and to support her husband's recovery from a recent illness. Industrial Commissioner Power cited and followed the above-mentioned authorities in addition to following the observations in Vermeer v Montague Fresh Queensland Pty Ltd ('Vermeer')., In particular, Commissioner Power cited favourably Commissioner Brown's definitions of "domestic" and "pressing" in Vermeer. Commissioner Brown held that "domestic" means an issue relating to the home or household affairs, while "pressing" means urgent or demanding immediate attention. In light of the authorities on what constitutes a "domestic or other pressing necessity", Industrial Commissioner Power concluded that the applicant's need to move jobs in order to provide care and support to the partner and a child meant that her resignation was because of a "domestic or other pressing necessity".

Submissions and evidence

[11]	The parties agree that the Applicant commenced employment with the Respondent on 1 September 2015 and resigned in writing on 12 February 2024, with that resignation taking effect on 14 March 2024. Accordingly, the parties agree that the length of the continuous service is roughly 8.5 years long.

[12]	The Applicant's unchallenged evidence is that she lives with, and has been the primary caregiver for, her 87-year-old mother for quite some time.  The Applicant's evidence was that in around September 2023, her mother fell and was subsequently hospitalised. After her mother was discharged from the hospital, the applicant provided around-the-clock care for her mother. The applicant needed to work from home to provide this care.

[13]	The Respondent was furnished with some details about why the applicant needed to work from home but was never fully aware of the nature of the Applicant's responsibilities. Nonetheless, the Respondent accommodated the Applicant's need to work from home for a while despite a hybrid working arrangement being in place that required the Applicant to work in the office on Tuesdays and Thursdays.

[14]	The Applicant's unchallenged evidence is that, around late 2023 and into January and February 2024, her mother needed help with basic tasks. Her mother was able to move with a walking frame but nonetheless required help to move from one room to the other and going to the bathroom. So frail was her mother that the Applicant said that she did not think her mother "would make it through" and believed at that time that her mother was entering the final phase of her life. And to make matters worse, it appeared to the Applicant that her mother would need even more intense care as the months progressed. 

[15]	The Applicant gave evidence regarding whether there was anyone else who could have assisted with the care obligations concerning the Applicant's mother at the time she resigned her employment. Her answer to that was that there was no other option. The Applicant's evidence was that her brother was the only other family member potentially able to assist. However, her brother lives in Brisbane, whereas the Applicant lives with her mother on the Gold Coast. And in addition to living far from the Applicant's mother, the Applicant's brother has his own family and he was simply not available to provide care and support to the Applicant's mother during working hours. Consequently, the brother could not realistically assist with care of the mother.

[16]	When asked by the Commission as to why she never mentioned care and support for her mother in her resignation email, the Applicant's evidence was that she just wanted to keep it brief and that she intended to provide more detail in a face-to-face discussion. That face-to-face discussion, however, never eventuated.

[17]	The Applicant also says she rejected some job offers that came in after she resigned from the Respondent because these offers required attendance at the office on a full-time basis. At the time, the applicant felt unable to accommodate a full-time commitment due to her care's responsibilities.

[18]	Fortunately, the mother's health improved in the following two months after the Applicant resigned, owing in part to the Applicant, who remained without work during this time, providing her mother with the required care. Additionally, in and around April 2024, the Applicant's next-door neighbour offered, and the Applicant accepted, assistance with some of the Applicant's care responsibilities. 

[19]	The Applicant has since found alternative employment. In her new job, the Applicant is required to attend the office four days a week between 9:30 AM and 2:30 PM. There is, however, a good chance that a hybrid arrangement might eventuate in this new job. And thanks to the improvement in the Applicant's mother's health and the assistance from the neighbour, the situation is not as dire as it was when the Applicant resigned from employment with the Respondent. Hence, the Applicant is now able to be in the office four shorter days a week.

[20]	Mr Rafferty gave evidence for the Respondent. The parties do not disagree on the quantum or value in dollar terms of the long service leave. Mr Rafferty gave evidence that the Respondent had been advised by the Applicant about some of the circumstances regarding the Applicant's mother. However, the Applicant did not provide the Respondent with a great deal of detail about the Applicant's care responsibilities. The Respondent accepts that, just prior to resigning, the Applicant took six weeks of sick leave, with a medical certificate confirming that the leave was for the purposes of caring for the Applicant's mother. It was approximately two weeks into that leave when the Applicant resigned from the Respondent.

[21]	On 25 October 2023, at 12:42 PM, the following email was written by Mr Rafferty to the Applicant:

Hi May

We understand that everyone has specific family needs and the tilt between work and home can be difficult at times.

We have tried as best we can to facilitate your particular home circumstances from 1st September and until recently haven't pushed to have you work in the office on Tuesday and Thursdays like the rest of the team have been.

We are a little concerned about your comments below about returning to the office 'depends on the circumstances at home' (sic).

I wanted to confirm with you that this is a requirement and non-negotiable regarding flexible work arrangements across the Head Office team. I encourage you over the next few weeks to review and find a way to be able to work from the office on the designated dates. This is a requirement and a reasonable request of your position and all other Head Office positions.

Happy to talk this through further with you.

Thank you
Marty

[22]	The evidence from the Applicant and Mr Rafferty is that at some point prior to this email, the Applicant did let the Respondent know that she was, owing to her care obligations, unlikely to be able to return to working in the office. The Respondent's evidence is that whilst some flexibility had been provided to the Applicant – which was a considerable amount in my opinion – the Respondent had reached its practical limit.

[23]	On 29 January 2024, at 9:56 AM, the Applicant wrote by email to Mr Rafferty and Mr Scott Findlay:

Hi Martin/Scott,

I hope you had a good weekend.

My circumstances has (sic) changed and I need to take six weeks carers leave starting 01.02.24 until 14.03.24. Unfortunately, during this time I won't be able to do any work even from home. Based on my calculation, I should have accumulated enough sick leave to cover this period.

I will provide medical certificate (if it is required) after I meet with the doctor tomorrow afternoon.

Please let me know if you need anything else.

Kind regards,

May Hoveydai

[24]	The Applicant then sent a medical certificate to the Respondent. That medical certificate is from the Ashben Medical Centre's Dr Foad Khademi. That certificate relevantly provided: "Ms Nagheh (sic) (May) Hoveydai has to look after her Mother for her recovering  (sic) and will be unfit for work from 1/02/2024 to 14/03/2024 inclusive."

[25]	On 12 February 2024, at 9:19 AM, the Applicant sent to Mr Rafferty and Mr Findlay the following resignation email:

Hi Martin and Scott,

I hope everything is going well.

After careful consideration, I am writing to formally submit my resignation from my position at Nixon Pacific, effective 14 March 2024. 

While it was not an easy decision, after thoughtful reflection, I have decided that it is in my best interest to pursue new challenges and opportunities elsewhere.

I'm grateful for the experience and skills I have gained here, and I want to express my appreciation for the provided opportunities.

I am happy to answer any questions you might have over an online meeting. Please note, I have already handed over my laptop and screen to Kerry and I don't have any other equipment belonging to Nixon Pacific in my possession.

Thank you again for the opportunity to be part of the team at Nixon. I wish you and the company continued success in the future.

Kind regards,

May Hoveydai

[26]	The Applicant submits that she requested to work from home and took sick leave because she needed to provide care and support to her mother. The Applicant submits that her resignation, and subsequent pursuit of alternative employment, was because it was clear to her that she could no longer continue providing the necessary care for her mother while performing the in-office hours required by the Respondent. The Applicant submits that she "had no viable alternative but to resign in order to fulfil [her] duties as the primary caregiver for [her] mother, thereby necessitating a job change to accommodate this pressing family responsibility."

[27]	The Respondent's submissions and evidence do not challenge the nature of the Applicant's caregiving obligations. Whilst the Respondent had some information available at the relevant time, it did not know the full picture. The Respondent relies principally on the wording in the resignation email "… to pursue new challenges and opportunities elsewhere…" in support of its argument that a primary reason for the resignation was the pursuit of more attractive work arrangements. The Respondent points to the fact that the Applicant engaged two recruitment services soon after her resignation in support of that submission.

Consideration

[28]	I accept the Applicant's evidence. I therefore make the following findings of fact:

(a)	at the time she resigned from the Respondent's employment, the Applicant lived with and was the primary caregiver for her 87-year-old mother who was very ill and whose health appeared to be deteriorating;

(b)	the Applicant's caregiving obligations at that time were significant and could not be carried out whilst attending the Respondent's offices two days a week as agreed previously;

(c)	the situation has improved thanks to improvements in the Applicant's mother's health and to some assistance that the Applicant has obtained from her neighbour;

(d)	the Applicant attempted to renegotiate the terms of engagement with the Respondent so as to provide a work from home arrangement that would enable the Applicant to provide full-time care for her mother;

(e)	the Respondent was not able to accommodate that request, such were the demands of its business in needing the Applicant to attend its offices on at least two days per week;

(f)	the six weeks carers leave that the Applicant took was for the purposes of caring for her mother;

(g)	the Applicant resigned from her employment with the Respondent primarily in order to find alternative employment that would allow the Applicant to work and care for her mother.

[29]	My assessment of the evidence in this case leads me to conclude that in the Applicant's resignation email ("to pursue new challenges and opportunities") was a polite way of keeping the resignation simple. I accept that the Applicant intended to provide more details to the Respondent at a later date, the opportunity for which never arose. The Applicant's resignation email is not inconsistent with what the Applicant maintains was the main reason for, or cause of, her resignation. Even if the email statements were inconsistent, applying his Honour President Martin's observations, cited above from Linfox, brings the situation into sharp relief. Whatever the resignation statements made were, the evidence clearly demonstrates that the real reason for, or cause of, the resignation was the Applicant's carer's responsibilities.

[30]	I also accept the Applicant's evidence that there was no other person readily available to provide that care to the Applicant's mother. The situation has improved since the date of resignation. However, the relevant point in time is when an applicant is weighing up and deciding whether to resign. What motivated them to do so, at that time, is the key inquiry. I accept the Applicant's evidence that at the time of her resignation the main reason for doing so was to find work that better enabled the Applicant to provide care and support to her mother.

[31]	As to a "domestic or other pressing necessity", I find that the Applicant's need to provide the relevant care in this case was a pressing need. Based on the evidence, which I accept, at the time of resignation the Applicant's mother needed around-the-clock care. Put another way, the Applicant's obligations in this case were not something that could reasonably be put off until after she came home from work on the relevant days. I find that the Applicant's care obligation was also necessary in that there was no other viable option but for the Applicant to provide that care. Further, I find that the relationship between the Applicant and her mother, as well as the fact that they lived together, qualifies the situation as "domestic". It follows that I conclude that the Applicant's care obligations did qualify as a " domestic or other pressing necessity" within the meaning of s 95 (4)(b)(ii) of the IR Act.

[32]	By February 2024, it was clear that the substantial relaxation of the hybrid work agreement that the Respondent had in place could not continue. The Applicant had procured some more time to provide care for her mother with the legitimate use of her full accrued entitlement of six weeks of sick leave. But that was obviously not sustainable. On those facts, and the facts I have found above in relation to the nature of the Applicant's mother's health, I assess this case to be one where, objectively, a reasonable person might very easily have felt compelled to seek to resolve the situation that the Applicant found herself in by terminating the employment.

[33]	Having regard to the above-mentioned questions posed in Leslie, I am satisfied that the Applicant resigned from her employment because of a "domestic or other pressing necessity" within the meaning of section 95(4)(b)(ii) of the IR Act. I am satisfied that the reason was genuine and that it was the real and motivating reason for the resignation. I find that it was the Applicant's care obligations did cause the resignation in this case and that those obligations did affect the Applicant in relation to the services she terminated.

[34]	I conclude therefore that the Applicant was, upon her resignation, entitled to proportionate payment of long service leave pursuant to section 95(4)(b)(ii) of the IR Act because the Applicant resigned due to a domestic or other pressing necessity after over seven years of continuous service with the Respondent. The parties agree that the value of that entitlement is $11,419.50. Accordingly, I order that the Respondent pay the sum of $11,419.50, less applicable tax, to the Applicant within 14 days of the date of this decision.

Order
1.	The Applicant is granted.

2.	Within 14 days of the date of this decision, the Respondent is to pay to the Applicant the sum of $11,419.50, less applicable tax.