The Full Bench of the Supreme Court, in a majority judgment, in Flinders Ports Pty Ltd v Woolford [2015] SASCFC 6 has clarified what it means to be on “unpaid leave”.

This decision involved an employee who was employed as a casual worker to perform mooring, deckhand and maintenance duties in Port Lincoln Harbour. He was employed on a series of contracts from 16 October 1990 until 10 October 2008, when he ceased work due to a work-related injury. During this time the employee worked varying hours, shifts and duties depending on the work that was available. For differing reasons, both Kourakis CJ and Stanley J found that the worker had been continuously employed by Flinders Ports Pty Ltd until his employment was formally terminated on 23 September 2011.

Section 3 of the Long Service Leave Act 1987 (SA) (‘the LSL Act’) states that where an employee is employed on a casual basis, the weekly rate of payment for the purposes of long service leave will be calculated by reference to the average number of hours an employee worked during the three years preceding when the entitlement to long service leave arises.

At issue was whether the period that the employee was away from work as a result of his work-related injury (and in receipt of weekly payments pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA)) should be disregarded for the purposes of calculating the employees long service leave entitlement pursuant to section 3(4)(b) of the LSL Act, as “unpaid leave”.

Stanley J and Kelly J (Kourakis CJ dissenting) found that “Leave is an entitlement relieving the employee from the performance of work duties, which is conferred by the terms of the employment contract, an industrial instrument or Act of Parliament that applies to that employment. Usually such leave is paid. Leave can also be granted to an employee by an employer as an indulgence. The employee is relieved from the performance of work outside of any contractual or statutory context.”

Although this decision concerned circumstances in which an employee was away from work as a consequence of a work-related injury, it potentially has much broader application to any employee who is employed as a part-time or casual employee, or paid on a performance basis.

Simply because an employee is not at work, they will not be taken to be on unpaid leave. In order to be on unpaid leave an employee will need to be able to establish that they are using an industrial entitlement or that the employer has in some way positively condoned the employee taking a period of unpaid leave.

If you have an employee(s) who has been absent from work for a period of time without authorisation from the employer (and not on paid leave), you should seek advice as to how this decision might affect you.

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

For more information, please contact...

Ben Duggan

View Profile →

Related Articles

View All News
December 20, 2023 Workplace Criminalisation: Labor Governments Criminalise Workplace Manslaughter and Wage Theft
Employment, Workplace Relations & Safety
December 20, 2023 Seriously Injured Workers and the Obligation of Mutuality
Workers Compensation & Self Insurance
December 05, 2023 It’s Time to Fix Your Fixed-Term Contracts!
Employment, Workplace Relations & Safety
November 28, 2023 Payroll Tax and Medical Practices: An Update and Warning to Others
Tax Health & Aged Care Employment, Workplace Relations & Safety
October 19, 2023 Bridging the Gap: New Director Enhances Workers Compensation Practice
Firm News Workers Compensation & Self Insurance
September 27, 2023 Workers Compensation in South Australia: Has Malinauskas Kicked an Own Goal?
Workers Compensation & Self Insurance
September 15, 2023 Payroll Tax and Medical Practices
Tax Employment, Workplace Relations & Safety Health & Aged Care
September 11, 2023 Taking Reasonable Care to Ensure Your Acts or Omissions Don’t Land You in Court
Employment, Workplace Relations & Safety
September 06, 2023 Hospitality and Retail Brace for Impact
Hospitality Employment, Workplace Relations & Safety
August 02, 2023 Increase in Minimum Award Rates of Pay
Employment, Workplace Relations & Safety
July 17, 2023 Section 18: A Solution Looking for a Problem
Workers Compensation & Self Insurance
July 07, 2023 Significant Changes to the Obligation to Provide Suitable Employment Ahead
Workers Compensation & Self Insurance
July 05, 2023 Collaborating With Robots in the Workplace
Employment, Workplace Relations & Safety
June 08, 2023 Landmark Decision: Fair Work Commission Implements Historic Minimum Wage Hike
Employment, Workplace Relations & Safety
June 05, 2023 From Fixed Term to Permanent
Employment, Workplace Relations & Safety
May 01, 2023 Countdown to the End of Zombie Agreements: Is Your Business Compliant?
Employment, Workplace Relations & Safety
November 03, 2022 Pivot in Enforcement Strategy to Create Safer Workplaces
Employment, Workplace Relations & Safety
July 12, 2022 Personal and Confidential Information: Employer Obligations to Employees
Employment, Workplace Relations & Safety Intellectual Property (IP)
June 24, 2022 Federal Labor Government to Regulate to Achieve Its Aim of Job Security
Employment, Workplace Relations & Safety
June 17, 2022 Fair Work Minimum Wage Review Significantly Increases Minimum Wage Rates
Employment, Workplace Relations & Safety