Loss of Long Service Leave Claims

There are a number of conditions that have to be met for a claim fro loss of long service leave to be successful in personal injury litigation

Background

Long Service Leave Act

All workers in NSW are entitled long service leave either under the NSW Long Service Leave Act or under another act or Federal award.

In respect of the first 10 years of continuous service a worker is entitled to two months paid leave.

The first additional five years after this, the worker is entitled to one month paid leave. After this the worker gets two months paid leave for each 10 year period they work.

A month is equivalent to 4 and one third weeks.

In the first 15 years of service even parts of years count towards the leave entitlement . After 15 years service only whole years are counted.

The rate of payment of calculation of long service leave years greater of ordinary pay immediately before the leave begins or the average weekly wage of the five years before the leave begins.

Ordinary rate of pay includes any bonuses or other regular and additional payments including board and lodgings in 12 months before the leave is taken.

Notes for the Calculation of Long Service Leave

In making a claim for long service leave, the plaintiff must have generally have spent a significant amount of time with the same employer (8-10 years). We have to assume that the plaintiff would take the long service leave upon retirement. If the plaintiff has already taken long service leave, it becomes more difficult to argue that he would take it upon retirement. If he takes it as holidays then there is no economic loss but merely as loss of enjoyment of leave.

The calculation of long service leave can either be calculated upon the date he joined the employer or the date that he left his employer ( if collected LSL on termination). Long service leave is calculated up to age 65 (or retirement).

The amount is calculated as:

Period from start to age 65 x years
Expected ordinary time weekly earnings at 65 $ xx,000
Long service leave (x years * 0.866 * Weekly earnings $ xx,xxx
Less tax on Long Service Leave ( 31.5% or marginal rates) $ xxxx
Net Long Service Leave at Age 65 $ xxxxx
Present Value of $??,??? discounted at x %,
deferred for x years
$