Termination notice ran when on LSL

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Termination notice ran when on LSL

The period of termination notice applicable to a CEO of a local council in South Australia was found to have run while he was on long service leave.

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The period of termination notice applicable to a CEO of a local council in South Australia was found to have run while he was on long service leave.

A Full Court of the SA Supreme Court ruled that one year’s notice was reasonable notice of termination of employment, but part of this period was expended when he was on long service leave.

The appellate court also confirmed he was properly covered by his contract of employment and not an award.

[Full text of this case: District Council of Barunga West v H [2014] SASCFC 90 (6 August 2014)]

Justice Nicholson gave the leading judgment.

What reasonable notice should be implied?


The full court confirmed that reasonable notice should apply in this case in relation to this employee who had 40 years of service.

On appeal, the council argued that the primary judge erred in finding: that Mr H’s employment was not covered by a local government award; that it had been necessary to imply a term of reasonable notice into his contract; that the Council had not been entitled to summarily dismiss Mr H; and, given the amount of damages ultimately recovered by Mr H, in failing to find that Mr H was not entitled to costs.

All these arguments by the employer were rejected.

On the proper construction of the parties’ contract, the council was entitled to terminate Mr H’s contract on the basis of an implied term requiring reasonable notice.

The full court also found that the primary judge’s finding that the council had no entitlement to summarily dismiss Mr H was open on the evidence and was not disturbed.

However, the council was entitled to give its notice of termination while Mr H was on long service leave, such that the period of long service leave enjoyed by Mr H properly formed part of the period of notice given.

Notice ran during period of long service leave


The question in the present case was whether the reasonable notice implied term, which is included in the parties’ contract at common law, permitted the period of reasonable notice to commence during and to expire after a period of long service leave then being enjoyed.

The appellate court was not directed to any authority directly on point. Such authority as there was typically arose in the context of the construction of specific award provisions dealing with matters such as sick leave, annual leave and long service leave. In these cases, the proper construction of the award provision in question would be essential to the question of whether or not a notice of termination can expire during or otherwise incorporate a period of leave.

The conclusion was that there was no basis upon which that cannot be so. There was no question of Mr H being deprived of his long service leave entitlement. He enjoyed full pay while on leave from his employment duties in accordance with his entitlement under the rules of long service leave.

The bottom line: The issue of notice running concurrently with leave is a contentious point, and the particular facts of each case have to be examined. See: Termination notice not concurrent with annual leave

District Council of Barunga West v H [2014] SASCFC 90 (6 August 2014)

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