Ebertson v Mooney's Corp Pty Ltd [2026] QIRC 35

[1] Mr Jonathan Ebertson ('the Applicant') filed an application for proportionate payment of long service leave pursuant to s 95 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[2] The Applicant claims that he is entitled to proportionate payment of long service leave from Mooney's Corp Pty Ltd ('the Respondent') on the basis that he has more than seven but less than ten years of service, with the employment ending because of redundancy.

[3] Section 95 of the IR Act is outlined as follows:

95 Entitlement - employees other than seasonal employees

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

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

(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.

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.

[4] The Applicant filed the application in the Queensland Industrial Commission Registry ('the Registry') on 15 October 2024. On the same date, the Registry sent an email attaching the application to Ms Shelly Mooney (Administration Manager of the Respondent) at the email address included in the application.

[5] A Notice of Listing was sent to the Parties on 17 October 2024 directing them to appear via telephone at a conciliation conference that had been listed for midday on 12 November 2024.

[6] The Registry sent an email to the Parties, including Ms Mooney, on 30 October 2024 attaching a Direction Order confirming that the matter had been referred to conciliation.

[7] Neither Ms Mooney nor any other representative of the Respondent attended the conciliation conference on 12 November 2024. The Applicant advised of a number of other email addresses at which the Respondent could be contacted, including the email address of Mr Lance Mooney (the Owner and Director of the Respondent) and Ms Mooney's personal email.

[8] On 12 November 2024, the Registry sent an email to the Respondent, including three alternative email addresses, attaching the original application, the Directions Order and the Notice of Listing. The Respondent was requested to confirm receipt, however no response was received.

[9] A further Notice of Listing was sent to the Parties on 16 December 2024 directing all parties to appear via telephone at a conciliation conference listed for 16 January 2025.

[10] The Respondent did not send a representative to the conciliation conference on 16 January 2025.

[11] On 16 January 2025 a Further Directions Order was issued directing the Respondent to file affidavit material by 13 February 2025.

[12] The Respondent did not comply with the direction to file affidavit material.

[13] On 17 February 2025 an email was sent to the Respondent providing a final opportunity for the Respondent to file material, advising that if no response was filed a decision would be made on the material filed to date.

[14] The Applicant outlined the following grounds upon which the Application was made:

• The Applicant worked for the Respondent for a continuous period of eight years and ten months.

• On 11 March 2024, Ms Mooney advised the Applicant that his position was to be made redundant as the company was downsizing.

• The Applicant's final workday was 19 April 2024; 5 weeks after being advised of the redundancy.

[15] The Applicant filed an Affidavit dated 30 January 2025 outlining the following:

• The Applicant commenced employment in July 2015 with Mooney's Contractors Pty Ltd.

• During 2016 the Mooney's Group of companies underwent a restructure.

• On 20 June 2016 the Applicant's employment was transitioned from Mooney's Contractors Pty Ltd to the Respondent.

• All original terms of employment remained the same and annual leave accrued to 19 June 2016 was moved across to the Respondent.

• On 11 March 2024 Ms Mooney, wife of Mr Mooney, advised the Applicant that his position within the company was to be made redundant as the company was downsizing.

• At the time of the redundancy announcement the Respondent employed the equivalent of 19 full time employees.

• The Applicant had worked for the Mooney's group of companies for a continuous period of eight years and ten months.

• To date no payment of long service leave has been received from the Respondent.

[16] In the absence of evidence or submissions from the Respondent I accept the evidence of the Applicant as contained in his sworn affidavit, with the exception of the length of time of service being eight years and ten months. The difference has no material effect on the question of entitlement.

[17] The Applicant commenced employment in July 2015 with Mooney's Contractors Pty Ltd and was made redundant on 19 April 2024 by the Respondent.

[18] It is unclear whether the restructure of the Mooney's Group of companies in 2016 involved a structural transfer of the Applicant's employment between the companies or if it was a less formal arrangement.

[19] The payment summaries of 22 June 2016 and 6 July 2016,[1] confirm that the Applicant's accrued leave was transferred from Mooney's Contractor's Pty Ltd to the Respondent. In the absence of further information, it appears that the Applicant continued to be employed with a Mooney's company as a subsidiary, or there was a transfer of calling from Mooney's Contractors Pty Ltd to the Respondent.

[20] Section 134 of the IR Act provides for circumstances in which continuity of service may be recognised. Section 134(8) is outlined as follows:

(8) Service with a corporation and any of the corporation's subsidiaries is taken to be continuous service with the same employer.

[21] I am satisfied that the Applicant had continuous service with the Respondent and that the Applicant's continuous service commenced in July 2015 and ceased on 19 April 2024.

[22] In accordance with s 95(3), the Applicant has completed at least 7 years continuous service giving rise to an entitlement to a proportionate payment for long service leave following the termination of his employment.

[23] I am also satisfied that in accordance with s 95(4)(c)(ii), the Respondent dismissed the Applicant for a reason other than conduct, capacity or performance, that being redundancy.

[24] The Applicant's evidence is that the value of his long service leave entitlement is $20,611.23. This amount is based on pro-rata long service leave of 7.6 weeks and an hourly rate outlined in the final pay slip of $67.30 per hour.

[25] I order that the Respondent pay the sum of $20,611.23, less applicable tax, to the Applicant within 28 days of the date of this decision in payment of his long service leave entitlement.

1. Within 28 days of the date of this decision, the Respondent is to pay to the Applicant the sum of $20,611.23, less applicable tax.

[1] Form 20 - Affidavit of Mr Jonathan Ebertson dated 30 January 2025, Attachments B and C.