Christie v The Star Entertainment Group Limited [2024] QIRC 96

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Christie v The Star Entertainment Group Limited [2024] QIRC 096 PARTIES: Christie, Toni Lea Thora Applicant v The Star Entertainment Group Limited (Respondent) CASE NO: B/2023/78 PROCEEDING: Application to recover unpaid wages DELIVERED ON: 30 April 2024 HEARING DATE: 29 April 2024 MEMBER: McLennan IC HEARD AT: Brisbane ORDERS: The application is dismissed. CATCHWORDS: INDUSTRIAL LAW – APPLICATION TO RECOVER UNPAID WAGES – where the applicant resigned from her employment after ten years – whether the applicant is entitled to payment of long service leave accruals upon cessation of her employment – where the applicant took periods of unpaid leave – consideration of continuity of service – application dismissed LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 (Qld) s 95, s 131, s 134 CASES: Johns v Flight Centre Travel Group Ltd [2020] QIRC 55 APPEARANCES: Ms T. Christie, the Applicant in person. -- 1 of 10 -- 2 Ms K. Singh of The Star Entertainment Group Limited for the Respondent. Reasons for Decision (ex tempore) Background [1] Ms Toni Christie (the Applicant) commenced full time work as a Safety Advisor with The Star Entertainment Group Limited (the Respondent; Star) on 17 June 2013. [2] About five years later, Ms Christie advanced to the position of Safety Manager. In that role, she reported directly to Ms Kerryn Hurd, General Manager of Health and Safety. [3] During her time with Star, Ms Christie accessed approximately 16 weeks' approved unpaid leave, having first exhausted the paid personal leave entitlements available to her in the relevant period.1 [4] Around March / April 2023, a lot of positions were made redundant at Star. That prompted Ms Christie's inquiries into her long service leave accruals, due to the "instability of the business." [5] Ms Christie recalled that she sent messages via "Star Now" (the IT service online portal), in the belief that her emails would be redirected to the appropriate department, though she received no response. However, Ms Christie did not make direct contact with the payroll / 'people and performance' unit(s) at that time. [6] In the March / April 2023 period, Ms Hurd recounted a conversation about redundancies had occurred between Ms Christie, Mr Jacob Eagleton and herself, in which the latter two colleagues speculated about the conditions under which accrued long service leave would be paid out in situations of redundancy or resignation. Ms Hurd's recollection was that one of the two (Ms Christie or Mr Eagleton) had stated that if a person had been with the business for more than 7 years and were made redundant, their understanding was that they would be paid out the accrued long service leave. Ms Hurd further stated that one of the two had then suggested that long service leave accruals are also paid out if you resign after 7 years. Importantly, that conversation occurred in the context of the recent spate of redundancies plaguing the business and the expectation that more would follow. [7] Ms Hurd denied that she had at any time advised Ms Christie that she was entitled to long service leave, saying that while she was aware that Ms Christie was "getting up there" (in terms of length of service with Star), she didn't recall any conversation about dates. 1 The nature of the medical conditions that caused Ms Christie to access the periods of approved unpaid leave are not relevant to this Decision. -- 2 of 10 -- 3 [8] Ms Christie's evidence was that she had a one-on-one conversation with Ms Hurd after Mr Eagleton had departed, in which Ms Hurd told her words to the effect of "You're long service leave is all there, you should be fine." Ms Hurd had no recollection of that conversation with Ms Christie. [9] Ms Christie stated that colleague Mr David Witting had told her that she could ask Star to exercise special discretion to pay her long service leave accruals. Ms Christie further stated that Mr Mick Smith (Safety Manager, Sydney) had told her sometime around April 2023 that the business had previously "waived it through for others". [10] In the June 2023 regular monthly team meeting, Ms Hurd recognised Ms Christie's 10 year work anniversary, thanking her for "all of her contributions to The Star." Ms Hurd's evidence was that a usual part of the monthly team meetings were to "discuss individual team member achievements or milestones including work anniversaries." [11] Ultimately Ms Christie resigned from Star on 28 June 2023, having been "head hunted" to take up a more lucrative Safety Manager role with an external organisation, JBS. Ms Christie advised Ms Hurd that she would be starting her new job on 1 August 2023, so her last day with Star would be 26 July 2023. While that cessation date was much shorter than the 3 months' notice period prescribed in Ms Christie's contractual obligations to Star, Ms Hurd referred the matter to Mr Scott Saunders (Chief Risk Officer). Mr Saunders decided to release Ms Christie from the required notice period, so that she may commence her new job with JBS as intended on 1 August 2023. [12] On 2 July 2023, Ms Christie inquired about the status of her long service leave accruals. [13] Ms Hurd's evidence was that she had not seen Ms Christie's long service leave accruals show up on the i-connect system, and so asked Ms Christie whether she would like her to follow the matter up with the Human Resources department on or about 11 July 2023. Ms Christie replied words to the effect of "No, no, I have already". [14] On 25 July 2023, the Respondent submitted that "… after reviewing her enquiry, the Respondent confirmed that the Applicant would not be paid out any amount on the cessation of her employment in respect of the long service leave, because she had not completed the requisite 10 years of continuous service with the Respondent due to Unpaid Leave Periods taken during her employment with the Respondent." Ms Christie's last day of work with Star was the very next day. Ms Christie expressed some frustration that while she had "tried to get the information out of Star", it nonetheless "took 23 days". Ms Christie said that if she had known she was not entitled to long service leave prior to resigning, she would not have done so. [15] In her closing submission, Ms Christie stated that whilst Star had refused her claim to be paid long service leave accruals on the grounds that she did not yet have ten years continuous service upon cessation of employment on 26 July 2023, no consideration had been given to the significant amount of additional hours she had worked. Ms Christie's -- 3 of 10 -- 4 submission was that the extra time she had worked "certainly outweighs" the number of weeks that she fell short of the required ten years continuous service with Star. Application Details [16] In order to recover payment for the long service leave accruals she believed were owed to her, Ms Christie filed a Form 15 Application with the Industrial Registry on 28 September 2023, pursuant to s 475 of the Industrial Relations Act 2016 (Qld) (IR Act). [17] In that Application, Ms Christie claimed the sum of $20,757.12. That is, the gross weekly amount of $2,594.64 multiplied by 8 weeks. [18] The onus is on Ms Christie to prove, on the balance of probabilities, that the monies claimed are owed to her. Question to be Decided [19] The question to be decided is: Whether or not Ms Christie is entitled to payment of long service leave accruals, upon cessation of her employment with Star. Relevant Principles [20] The IR Act sets out when long service leave accruals become an entitlement and the circumstances where it must be paid to an employee upon cessation of their employment. [21] Section 95(2)(a) of the IR Act provides that the employee is entitled to 8.6667 weeks long service leave on full pay, if the employee has completed 10 years continuous service. [22] While s 95(3)-(4) of the IR Act envisages that a proportionate payment of long service leave may be made to an employee who has completed at least 7 years continuous service, on the termination of the employee's service, that is limited to particular circumstances. The employee is entitled to a proportionate payment only if: 2 (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 2 Industrial Relations Act 2016 (Qld) s 95(4). -- 4 of 10 -- 5 (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 ten years continuous service; and (ii) the employee was prepared to continue the employment with the employer. [23] In s 95(7) of the IR Act, 'proportionate payment' is defined to be: … 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. [24] Part 4 of the IR Act sets out matters pertaining to the continuity of service and employment. Section 131(1) of the IR Act explains that "This part applies for working out an employee's rights and entitlements under this chapter, and applicable industrial instrument or a federal industrial instrument by prescribing when the employee's continuity of service is not broken." [25] Section 134 of the IR Act states that: (3) An employee's continuity of service with an employer is not broken by an absence, including through illness or injury – (a) on paid leave approved by the employer; or (b) on unpaid leave approved by the employer. … (9) However, a period for which the employee is away from work under subsection (3)(b) … is not service under this part unless – (a) this Act or an applicable industrial instrument provides otherwise; or (b) the commission directs otherwise. Contract of Employment [26] In addition to the precise terms of the IR Act, Ms Christie's contract of employment is in evidence. That contract dated 11 June 2013 refers to long service leave entitlements in these terms (emphasis added): Leave entitlements Your leave entitlements are those set out in applicable legislation, including the National Employment Standards (NES) under the Fair Work Act 2009 (Cth). If you are covered by an industrial instrument (an award or agreement), additional leave entitlements or arrangements may apply to you. You legislative entitlements include (in summary). … (c) Long service leave – Employees are entitled to long service leave after completing the requisite minimum period of service with the Company in accordance with the applicable legislation in their state or territory (as varied from time to time). Accrued but untaken long service leave will be paid out on termination. Employees may also be entitled to be paid out long service leave on a pro rata basis if their employment terminates before the employee reaches the minimum service period. … -- 5 of 10 -- 6 More details about your leave entitlements are contained in the Company's leave policies, available on the Company's intranet, or by contacting your human resources representative. [27] Those words remained unaltered when an updated contract of employment was issued to Ms Christie dated 26 August 2016. Company Policy [28] The Respondent's 'Leave and Attendance Policy' (version 20 August 2021) that applied at the relevant time, was also in evidence at the Hearing. Clause 2.8 of the Policy states: 2.8 Long Service Leave Long service leave accrues from the first day of employment in accordance with legislation in the applicable state or territory. Full-time team members are entitled to 8.67 weeks of paid leave after ten years of continuous service or more (or earlier) if required by legislation. This is pro-rated for part-time team members. Periods of unpaid leave, including parental leave, do not count as service (i.e. no leave entitlements accrue during unpaid leave) but continuous service is not broken. … Team members based in: NSW or Queensland with 10 or more years' continuous service are entitled to a pro-rata payment of long service leave on termination, regardless of the reason for termination of the employment. In addition: … • Queensland team members with at least seven years' continuous service will be entitled to payment of pro-rata long service leave in certain circumstances including where the employment terminates due to death, illness or incapacity or domestic or other pressing necessity of the team member, or where it is terminated by The Star other than for the team member's capacity, conduct or performance. 2.8.1 Team members' responsibilities Team members are responsible for: • communicating with your leader your preference to take long service leave at least three months prior to the intended commencement of the leave; … 2.8.2 Leaders' responsibilities Leaders are responsible for: • being aware of team members' long service leave accruals in order to plan for and anticipate long service leave applications; • encourage team members to take long service leave when they become eligible; … Evidence [29] Ms Christie was the only witness for the Applicant's case. Despite several references to conversations she had with former colleagues at Star, Ms Christie did not call those people as witnesses in this proceeding. [30] Ms Hurd was the only witness for the Respondent's case. -- 6 of 10 -- 7 [31] In addition to the evidence of the two witnesses, I have considered the documents filed in this matter. That includes the: • Form 15 Application filed 28 September 2023 and various emails regarding long service leave accrual inquiries made in the period 19 July 2023 to 9 August 2023 attached • Affidavit of Ms Christie filed 27 March 2024 • Affidavit of Ms Hurd filed 18 April 2024 and various documents attached: Contract of Employment dated 11 June 2013 Contract of Employment dated 26 August 2016 Variation to Contract dated 26 June 2018 Ms Christie's leave records Ms Christie's resignation letter dated 28 June 2023 Email from Ms Hurd to Ms Christie dated 28 June 2023 Email from Ms Hurd to payroll department dated 17 July 2023 Correspondence from payroll department to Ms Christie dated 25 July 2023 Correspondence between Ms Christie and Employee Relations department Email from Ms Christie to team members dated 26 July 2023 • Respondent's Outline of Submissions filed 18 April 2024 [32] At the Hearing, the Respondent tendered Star's "Leave and Attendance Policy". That is 'Exhibit 1'. Consideration [33] It is not disputed between the parties that Ms Christie commenced work with Star on 17 June 2013 and her employment ceased on 26 July 2023. It follows that Ms Christie was employed by Star for approximately 10 years, one month and 9 days. [34] Neither is it disputed between the parties that Ms Christie accessed periods of approved unpaid leave during her employment with Star. The periods of approved unpaid leave amounted to approximately 16 weeks. [35] As s 134 of the IR Act clearly states, while periods of approved unpaid leave do not break an employee's continuity of service, such periods of absence do not count towards an employee's continuity of service either. Imagine hitting a 'pause' button for such periods of absence, that is then 'resumed' once one is back at work as normal. Ms Christie's periods of approved unpaid leave do not mean that she must begin accruing her long -- 7 of 10 -- 8 service leave from scratch – she does not need to restart the leave counter at zero – but the approximately 16 weeks of approved unpaid leave taken are deducted from the approximately 10 years, one month and 9 days spent in the employ of Star. As the Respondent correctly asserted, the mathematical reality is that Ms Christie's period of continuous service with Star fell about 10 weeks short of the long service leave accruals crystalising into an 'entitlement'. [36] Section 95 of the IR Act explains that an employee becomes entitled to 8.6667 weeks long service leave on full pay, if the employee has completed 10 years continuous service. To be clear, eligibility does not occur upon an employee reaching the 10 year 'work anniversary' of their commencement date. The provision expressly states that 10 years of 'continuous service' is the threshold required. Section 134(9) of the IR Act states that a period for which the employee is away from work on approved unpaid leave is not service. [37] The interpretation of s 134(9) of the IR Act provided here is not a grey area of law. In Johns v Flight Centre Travel Group Ltd3 the applicant was denied a payout of long service leave where although the applicant had completed 10 years' service with her employer, there had been significant periods of unpaid parental leave in the 10 years which could not be counted towards the calculation of her continuous service. [38] I have read the decision of Hartigan IC (as she then was) in Johns v Flight Centre Travel Group Ltd.4 The case is analogous to this in that Ms Johns had not reached 10 years' continuous service (and therefore did not have an entitlement to long service leave) because of periods of approved unpaid leave. In that case, Hartigan IC (as she then was) dismissed Ms Johns' application for the payment of long service leave, as she did not have such entitlement. [39] I have reviewed Ms Christie's contract of employment, that makes clear that "Your leave entitlements are those set out in applicable legislation". The contract goes on to refer employees to "… the Company's leave policies, available on the Company's intranet, or by contacting your human resources representative", should they require "More details about your leave entitlements …" While Ms Christie's evidence was that she had sought information about her long service leave entitlements as early as March / April 2023 due to the "instability of the business" via the "Star Now" (IT service online portal), that is not the same as "contacting your human resources representative" as instructed. Ms Christie took the step of seeking information from payroll after she had resigned from Star. [40] Neither had Ms Christie seemingly consulted the Company's Policy about long service leave. The words of the policy are unambiguous, as it states "Periods of unpaid leave, including parental leave, do not count as service (i.e. no leave entitlements accrue during 3 [2020] QIRC 55. 4 Ibid. -- 8 of 10 -- 9 unpaid leave) but continuous service is not broken." It ought to have been apparent to Ms Christie that the periods of approved unpaid leave do not count towards the required 10 years of continuous service. [41] For all those reasons, I find that Ms Christie had not reached 10 years continuous service and therefore was not eligible to paid out long service leave accruals upon her resignation from Star. [42] In considering this matter, I have also turned my mind to whether or not Ms Christie may be eligible for some proportionate payment of long service leave, in circumstances where she had more than 7 years continuous service (though not yet 10 years continuous service, for the reasons explained above). I have determined that Ms Christie is not eligible for such pro rata payment either. That is because Ms Christie's reasons for resigning from her employment with Star were evidenced in both the resignation letter dated 28 June 2023, and farewell email to colleagues dated 26 July 2023. Those documents makes clear that Ms Christie left Star to take up a more lucrative position with an external organisation – and not for reasons of either "employee's illness" or "a domestic or other pressing necessity" that may have triggered a proportionate payment of long service leave accruals after seven years continuous service, in accordance with s 95 of the IR Act. [43] With respect to the possibility of a proportionate payment after 7 years continuous service, I again note that the contract of employment clearly expressed that the "Your leave entitlements are those set out in applicable legislation" and referred employees to the Company's leave policies or human resources department, should they require more details about your leave entitlements. The Company's Policy provides that "Queensland team members with at least seven years' continuous service will be entitled to payment of pro-rata long service leave in certain circumstances including where the employment terminates due to death, illness or incapacity or domestic or other pressing necessity of the team member, or where it is terminated by The Star other than for the team member's capacity, conduct or performance." There can be no criticism that the terms of the company policy was not in plain English – the words are plain in their meaning and are easily understood. Ms Christie did not leave her employment with Star for any of those stated reasons, she resigned to take up a 'better' job. That is entirely reasonable, of course – however, it doesn't follow that a result of such a personal career development decision is the waiving of the long service leave eligibility requirements as determined by the legislature. [44] I sympathise with Ms Christie's reflection that if she had prior knowledge that she wasn't entitled to be paid out her long service, then she wouldn't have resigned when she did. I understand that is probably true, no-one would want to lose more than 8 weeks' pay after such a significant period of service with a company. However, the company did not hide the information from Ms Christie. It was available in the contract of employment, company policy, payroll and human resources department, and the information also readily available by reviewing the IR Act on the internet. In hindsight, Ms Christie ought -- 9 of 10 -- 10 to have made inquiries of payroll before she made the decision to resign from Star. The fact is though that she didn't do that. It cannot now be undone. The fact is that Ms Christie did resign her employment when she did, and ultimately ceased work with Star about 10 weeks shy of the entitlement becoming realised. [45] I have also heard Ms Christie's arguments that she worked significant additional hours in the Safety Manager position previously held with Star, and her assertion that ought to somehow ameliorate the ten week period that she has fallen short of the required ten years continuous service. Unfortunately, though, the legislation is not constructed such that those considerations may be taken into account. The measure of eligibility lies solely with the period of continuous service achieved, and that too is defined in the IR Act. Conclusion [46] In conclusion, Ms Christie also asserted that she ought be paid out her long service leave accruals upon resignation from Star because others have been paid out. Ms Christie gave evidence that Mr Witting and Mr Smith had respectively told her that she could ask for 'special discretion' for her long service leave to be paid and that such payment had been waived through for others. That may or may not be true, I cannot know. Neither Mr Witting nor Mr Smith were called to give evidence at the Hearing. Though even if they had, my decision would not turn on it. That is because the exercise of discretion to pay something one is not entitled to, relies on the company making a decision to do so. Clearly, it is always open to an employee to ask for more than they are entitled to – however, it is also open to the company to refuse, if such consideration is beyond an entitlement. That is the case here. If Star were minded to pay more than they must, they would have done so. They did not. [47] I completely appreciate that is utterly disappointing for Ms Christie. However, Star has not acted unlawfully in declining to pay Ms Christie an amount equal to her long service leave accruals during the period of her employment with Star. [48] I have determined that Ms Christie does not have an entitlement to long service leave, within the meaning of the IR Act. Order [49] I order accordingly: The application is dismissed. -- 10 of 10 --