Q: I am trying to determine whether an employee is entitled to a pro-rata long service leave payment. What would be considered a ‘domestic or other pressing necessity’ under the NSW Long Service Leave Act?

A: For an employee to have resigned due to a ‘domestic or other pressing necessity’ they need to have resigned because something not related to their work life has forced them to.

You can determine if an employee’s domestic or other pressing necessity is a legitimate reason by considering whether a reasonable person in the situation of the worker concerned would also feel compelled to resign. The reason stated does not have to be the sole reason but merely a motivating or compelling reason.

This can be a difficult thing to determine, so to give you an idea, here are some examples of circumstances that have previously been deemed domestic or other pressing necessity:

• a pregnant employee leaving work to take on the responsibility of “home duties” (Donnelly v South Maitland Railway Pty Ltd 1964 AILR 450)
• an employee forced to leave work to take care of a sick wife or take care of children (Franks v Kembla Equipment Co Pty Ltd 1969 AILR 55)
• changing jobs to lessen travel expenses when in difficult financial situation (Crennan v Oliver Furniture Pty Ltd (1962) 17 IIB 799)
• the taking of a higher paid job to cope with increasing financial commitments (Eyles v Cook (1967) 13 FLR 42)
• leaving a job because the night shift has become a strain on the employee’s family relationships and repeated requests for a transfer to the day shift had not been met (Williams v MacArthur Press (Sales) Pty Ltd 1990 AILR 137(14)
• leaving employment because the employer was relocating and the employee would have been required to drive two hours each way to and from work, and the employee was not prepared to move houses or to require her husband to change jobs (Kershaw v Electricity Commission of NSW 1991 AILR 91(7).

These examples do not, of course, fully encompass the many possible situations coming within the phrase “domestic or pressing necessity” but they give you some indication.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Long service leave for current advice.