Today, we’re going to continue on from Wednesday’s Bulletin with two more commonly asked subscriber questions – and their answers (from the team at Holding Redlich).

So let’s get straight into it!

Question 1: 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?

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.

Question 2: Can we include a clause in our workplace social media policy that allows us to instruct employees to remove posts and blogs that are in conflict with the policy?

Yes, you may. However, instructing employees to remove posts and blogs that contravene your social media policy may be fraught with difficulty on two levels.

Firstly, an employee’s access and use of social media outside working hours is generally a private matter for the employee. You can only regulate an employee’s online conduct outside of working hours if you can show it that it is a breach of their contractual duties to you, such as breach of confidentiality or breach of duty to faithfully serve your interests. In this context, your policy should only relate to instances where there are posts or blogs in which your business is mentioned or where it is implied to link employees with their employment.

Secondly, blog comments remain permanently accessible. Tracking tools can identify the contents of a website at a particular date, even if the contents are later “deleted”. Further, it is very easy to cache and replicate websites once material is published online. So while it may seem feasible to regulate your employee’s online behaviour, it will not be feasible to regulate the conduct of other users in the event they reproduce material that contravenes your policy.

In the circumstances, it would be more effective to rely on a well-drafted policy that specifies the consequences for failing to comply with the policy along the lines of disciplinary action, including dismissal.