Ma'Aelopa v State of Queensland

• [1] Mr Geoffrey Ma'Aelopa ('the Applicant') was employed by the State of Queensland (Queensland Police Service) ('the QPS').

• [2] The Applicant commenced employment with the QPS on 18 February 2013.

• [3] On 2 December 2022, the Applicant resigned from his employment with the QPS. As at 2 December 2022, the Applicant had been employed in his position with the QPS relevantly, for a period in excess of 7 years of service but prior to achieving 10 years of service.

• [4] On 10 July 2023, the Applicant filed an application pursuant to s 475(1) of the Industrial Relations Act 2016 ('the IR Act') for recovery of pro rata long service leave.

• [5] The Applicant contends that he is entitled to a proportionate payment of long service leave, despite having been employed by the QPS for less than 10 years, as he terminated his employment with the QPS because of a "domestic or other pressing necessity".

• [6] Relevant to this application, the Applicant is married with two children.

• [7] The QPS resists the application on the grounds that the Applicant's resignation was not due to any "domestic or other pressing necessity".

• [8] The application proceeded to a hearing with both the Applicant and the QPS calling evidence.

• [9] For the reasons outlined below, I have determined that the Applicant does have an entitlement to proportionate payment of long service leave pursuant to s 95(4)(b)(ii) of the IR Act.

• [10] Chapter 2, Part 3, Division 9 of the IR Act provides for an entitlement to long service leave in the following terms:

95 Entitlement - employees other than seasonal employees

(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 -

(b) the employee terminates the service because of -

(i) the employee's illness; or

(ii) a domestic or other pressing necessity; or

• [11] Relevant to the Applicant's application, the combined effect of s 95(3) and s 95(4)(b)(ii) of the IR Act is that an employee who has completed at least seven years continuous service is entitled to a proportionate payment for long service leave where the employee terminates the service because of a domestic or other pressing necessity.

• [12] Clause 23 of the Queensland Police Service Employees Award - State 2016 ('the Award') provides the entitlement to long service leave as follows:

(a) Long service leave, including for casual employees, is provided for in Division 9 of the QES. Clause 23(b) supplements the QES.

(b) In lieu of the provisions of sections 95(2)(a) and (b) of the Act, all employees who complete 10 years' continuous service are entitled to long service leave at the rate of 1.3 weeks on full pay for each year of continuous service and a proportionate amount for an incomplete year of service.

Note: Where a directive about long service leave covers an employee, the provisions of the directive apply to the employee to the extent it provides a more generous entitlement.

• [13] Section 67 of the Queensland Police Service Certified Agreement 2022 provides the following:

The conditions and entitlements prescribed in the Ministerial Directive relating to Long Service Leave as issued pursuant to the Public Service Act 2008[1] which may be amended from time to time will apply to police officers.

• [14] Clause 21 of Ministerial Directive 11/18 'Long Service Leave' ('the Directive') provides that:

1. Entitlement to a proportionate payment on termination after 7 years continuous service

• 21.1 An employee who has completed at least 7 years continuous service but less than 10 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service only if:

(a) the employee terminates his or her service because of:

(i) ill health or incapacity that is significant but does not qualify for ill health retirement; or

(ii) a domestic or other pressing necessity; or

(i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or

(ii) unfairly dismisses the employee.

• [15] The Applicant gave evidence and also called the following witnesses:

(a) the Applicant's spouse, Mrs Joy-Marie Ma'Aelopa ('Mrs Ma'Aelopa') ; and

(b) Ms Angela Green, Acting HR Business partner, Logan District, QPS.

• [16] Both the Applicant and Mrs Ma'Aelopa appeared by video link from New Zealand.

• [17] Ms Deborah Ann Patterson, Executive Director, Human Resources Division, QPS, gave evidence on behalf of the QPS.

Did the Applicant have an entitlement to proportionate payment of long service leave under the IR Act?

• [18] It is not in dispute that the Applicant was employed by the QPS for a period greater than 7 years but less than 10 years and had accrued a long service leave entitlement.

• [19] In AWU v Sunshine Coast Private Hospital[2] the Commission considered the phrase "because of a domestic or other pressing necessity" in the context of the now repealed s 43 of the Industrial Relations Act 1999 (Qld) which was in near identical terms to s 95 of the IR Act. After reviewing several New South Wales authorities, the Commission adopted, inter alia, the following questions to assist in the determination of the matter:[3]

1. Was the reason claimed for termination one which fell within the section?
2. Was such a reason genuinely held by the worker and not simply colourable or a rationalisation?
3. Although the reason claimed may not be the sole ground which actuated the worker in their decision to terminate, was it the real or motivating reason for it?; and
4. Was the reason such that a reasonable person in the circumstances that the worker found themselves placed might have felt compelled to terminate their employment?

• [20] I will adopt these questions in the context of my consideration further below.

• [21] A number of recent authorities in Queensland have considered the phrase "or other pressing necessity". Relevantly, in Saxby v Southern Downs Security Pty Ltd[4] Commissioner Fisher held:

For Mr Swift to be successful he needs to establish that he resigned his employment because of, that is, for the reason of, pressing necessity. Various decisions of this Commission have considered the meaning of "pressing necessity" by reference to the definitions of the words "pressing" and "necessity" found in the Macquarie Dictionary: Vermeer v Montague Fresh Pty Ltd; Hawkins v Torres Strait Island Regional Council; and Mihill v Harcourt Engineers Pty Ltd t/as Harcourt Consulting Engineers. In each of those decisions the definition of "pressing" was given as "urgent: demanding immediate attention" and "necessity" as "something necessary or indispensable". Adopting those definitions the question to be answered then is whether Mr Swift resigned [from] his employment for an urgent reason, one that demanded his immediate attention and was necessary. (Citations omitted).

• [22] The QPS submitted, it has been held[5] having regard to the context of the phrase "other pressing necessity" contained in s 95(4)(b)(ii) of the IR Act, the matter or issue, like that of a "domestic necessity" must be of such pressing character that it necessitates the resignation of the employee.

• [23] However, in making such a submission, the QPS conflates the terms "domestic necessity" and "pressing necessity" so that there must be a pressing or urgent component to the domestic necessity.

• [24] The Macquarie Dictionary defines "domestic" to mean, inter alia, "of or relating to the home, the household or household affairs".[6]

• [25] "Necessity" is defined[7] to mean "something necessary or indispensable".

• [26] The ordinary meaning of the words "domestic" and "necessity" are consistent with how the phrase has been judicially interpreted.

• [27] In Franks v Kembla Equipment Co,[8] Sheldon J applied the following test when dealing with a case of "domestic necessity" as follows:

"The test, I would suggest, is whether there is a really serious problem in the home, although not necessarily a crisis. On the one hand, the colourable and frivolous should be rejected but on the other, over-exacting standards should not be adopted. After all, what is being dealt with is not a sphere-shaking issue but a reason for terminating employment and a material consideration must be whether the domestic situation is such that a reasonable man might feel compelled to seek its solution by terminating his employment. If a really sick spouse, coupled with economic worries and difficulty in coping with small children, falls short of creating a domestic necessity, then it is hard to imagine what domestic chaos must exist before the test is satisfied."

• [28] In Oscar Budai v Bartercard Australia Pty Ltd[9] it was relevantly held that:

"... The authorities indicate that the concept of a domestic necessity is an extremely wide one. I am satisfied that the term 'domestic or other pressing necessity' is even broader."

• [29] It is apparent from the authorities referred to that each matter is to be determined on its respective facts.

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

• [30] The Applicant contends that he tendered his resignation because of a domestic or other pressing necessity. Relevantly, the Applicant resigned from the employment in order to move with his family unit (being his spouse and two children) to New Zealand. The Applicant provided the following basis for his family's relocation:

(a) the Applicant's mother-in-law is 67 years of age and is finding it increasingly difficult to care for both herself and her Mother (the Applicant's grandmother in-law) who is 94 years of age, who both reside in New Zealand. This difficulty has increased their "vulnerability, safety and wellbeing";

(b) the Applicant's mother-in-law had "appealed" to Mrs Ma'Aelopa about relocating to New Zealand to assist with the care and support of Mrs Ma'Aelopa's mother and grandmother;

(c) the Applicant and his family unit made a decision to relocate from Australia to New Zealand so that Mrs Ma'Aelopa could care for her mother and grandmother;

(d) that it was important for the Applicant's family unit that they relocate together and remain as a family unit in order for the Applicant and his spouse to assist each other in the care of their children;

(e) the Applicant and Mrs Ma'Aelopa are of Samoan ethnicity where "the main traditions for Samoans are faith and family"; and

(f) in Samoan culture, the eldest child of the family is expected to care for their aging parents. As Mrs Ma'Aelopa is the eldest and does not have younger siblings who reside in the same city as her mother and Grandmother, Mrs Ma'Aelopa was expected to take on these caring responsibilities.

• [31] The Applicant has relied on the evidence of Mrs Ma'Aelopa (who provided written and oral evidence). Mrs Ma'Aelopa's evidence corroborated the Applicant's evidence as to the reason why their family made the decision to geographically re-locate to New Zealand.

• [32] In response, the QPS contends that the assistance Mrs Ma'Aelopa sought to provide for her mother and grandmother was "neither urgent or immediate". The QPS submits that the decision to resign was a "well planned arrangement to ensure whatever commitments in Australia were completed, which took six months, and that then freed the Applicant and family to transition back to New Zealand, the family's home country".

• [33] The QPS submits that there was an alternate strategy to resigning by utilising the provisions of the Directive which provides that employees can access their pro-rata long service leave after seven years.[10] The QPS submits that there is no indication on the record that the Applicant sought to do this. The QPS submits that by accessing his pro-rata long service leave, the Applicant would have been allowed to assist "in transitional arrangements and attempt to secure employment" for the period during December.

• [34] The QPS notes in its submissions that New Zealand provides "a raft of services for carers and the aged via Senior Citizen Support Services" and submits that there is no mention that either Ms Ma'Aelopa of the Applicant sought assistance from these services.

• [35] Whilst it is accepted that the Applicant may have had alternative avenues available to him to be paid out his long service leave by, for example, staying in Australia and working for the QPS for a period of ten years, that is not the enquiry to be made. The enquiry is whether the Applicant ended the employment because of a "domestic or other pressing necessity".

• [36] On the evidence, I accept that the Applicant tendered his resignation in order for his family unit to geographically relocate to New Zealand in order to care for aging relatives. I consider in the context of the Applicant's family and cultural responsibilities he wanted to ensure that his family unit resided together whilst undertaking carer responsibilities for other family members. I consider that this falls within the definition of domestic necessity.

• [37] Some of the authorities have dealt with the phrase "domestic necessity" as distinctive to the phrase "or other pressing necessity" whereas other authorities have conflated the concepts as a "domestic and urgent necessity".

• [38] I consider that the resolution of this issue will be resolved by consideration as to the causal reason for the termination of employment.

• [39] If it is determined that the reason for the termination was for a genuine domestic necessity, then I consider that it will fall within the phrase "domestic or other pressing necessity". Such an assessment will require consideration of the relevant facts.

• [40] In this matter, the QPS contends that the Applicant's employment did not end until six months after determining that the family would need to return to New Zealand and, consequently, the decision to terminate the employment was not for a pressing need.

• [41] The evidence is that the Applicant and his family made the decision in about June 2022 that they would return to New Zealand in order to assist in the care of their relatives. The Applicant tendered his resignation in October 2022 with a termination date of 2 December 2022. The evidence of both the Applicant and his spouse was that they decided to re-locate at the end of the school year to allow their two children to complete their school year uninterrupted and to also permit his daughter to discharge her semi-professional netball commitments for the year. I consider that the education and sporting commitments of the Applicant's children were relevant matters to have regard to when making the decision, particularly which respect to the timing of the relocation.

• [42] The Applicant and his spouse also gave evidence that it took them several months to make the necessary arrangements to migrate from Australia to New Zealand. This including selling assets in Australia and finding accommodation and schooling options in New Zealand.

• [43] Ultimately, I accept that the decision to relocate from Australia to New Zealand was taken having regard to the Applicant's family and cultural responsibilities in Australia and New Zealand and was a decision made after balancing each of those respective responsibilities. The decision to relocate to New Zealand, including the timing of the relocation, was a decision made for a domestic necessity. Accordingly, I conclude that the decision was made for a "domestic or other pressing necessity" within the meaning of s 95(4)(b)(ii) of the IR Act.

2. Was such a reason genuinely held by the Applicant and not simply colourable or a rationalisation?

• [44] The evidence is that the Applicant and his spouse moved to Australia in 2013. Between 2013 and 2022 the Applicant and his family established a life in Australia which included that both the Applicant and his spouse were in employment, they had accommodation and also, their children were in schools and sporting teams.

• [45] The decision to relocate to New Zealand required the Applicant and his family unit to leave the life they had created in Australia. The evidence is that the Applicant and his family relocated to New Zealand to commence caring for aging relatives immediately upon his employment with the QPS ending. Consequently, I consider that the evidence supports that the decision was genuinely made on the basis of the Applicant's "domestic or other pressing necessities".

3. Although the reason claimed may not be the sole ground which motivated the Applicant in his decision, was it the real or motivating reason for it?

• [46] On the material referred to above, I am satisfied that the evidence supports a conclusion that the reason for the decision, being the Applicant's family and cultural responsibilities to care for his elderly relatives in New Zealand whilst keeping his family unit together, was the real and motivating reason for the decision.

4. Was the reason such that a reasonable person in the circumstances in which the Applicant found himself placed might have felt compelled to terminate their employment?

• [47] For the reasons referred to above, I consider a reasonable person in the Applicant's circumstances, including with the Applicant's family and cultural responsibilities, would have made the decision to terminate the employment in order to relocate to New Zealand.

• [48] For the forgoing reasons, I am satisfied that the Applicant resigned from his employment with the QPS because of a "domestic or other pressing necessity" within the meaning of s 95 of the IR Act. Accordingly, the Applicant is entitled to proportionate long service leave.

• [49] Consequently, I issue the following order:

Pursuant to s 475 of the IR Act, the Respondent is to pay an amount for proportionate payment of long service leave pursuant to s 95(4)(b)(ii) of the IR Act with respect to the Applicant's former employment with the Respondent.

[2] [2003] QIR Comm 241; 172 QGIG per Commissioner Asbury.

[3] See Computer Sciences of Australia Pty Ltd v Leslie (1983) 88 AR (NSW) 828.

[4] [2010] QIRC 40.

[6] Macquarie Dictionary (online at 8 February 2024) 'domestic' (def 1).

[8] Franks v Kembla Equipment Co. Pty Ltd (1969) AR 17 at 19.