The employer said she unlawfully ended her own contract - the tribunal saw it very differently
A South Australian tribunal has ordered an investigation and debt-recovery business to pay a former employee her leave entitlements after her seven-year job ended.
The employee joined the family-run business in May 2017, starting with a predecessor company and continuing after the business was restructured. Her employment ended in March 2025. She then claimed unpaid annual leave, leave loading and long service leave. The employer disputed the claim, and the matter came before the South Australian Employment Tribunal, which handed down its decision on July 22, 2026.
The employer resisted the claim on several grounds. It argued that the employee had worked part-time for parts of her service, that her evidence was not credible, and that she had "unlawfully terminated" her own contract by leaving without giving notice. Under South Australia's Long Service Leave Act, a worker who unlawfully ends their own contract can lose the pro-rata long service leave that otherwise accrues after seven years of service.
The Tribunal rejected each of these arguments.
On length of service, it found that the current business had effectively taken over the earlier one - a "transmission of business" - so the employee's earlier service counted toward her total. On her hours, it found she had worked full-time throughout. It relied on a company letter describing her as full-time, on evidence from a long-serving colleague, and on the fact that she had been paid over the Christmas break and during a week of illness. It also found no documented evidence that a proposed move to part-time work had ever taken effect; the employer's representative accepted the company's records were "poorly kept."
How the employment ended was central to the long service leave question. The employee gave evidence that she was yelled and sworn at by a senior officer of the business during a phone call about a client matter. The Tribunal said it could not determine precisely what was said, and considered that the employee may have overstated the exchange while the officer understated it. It was satisfied, however, that she was called an idiot, or asked if she was one, in a way that did not invite a response.
The employee left the workplace and said she would not return without an apology. No apology was given, and the officer did not contact her again. The employer did not tell her to return by a particular date or be treated as having resigned, and she kept her office keys for about seven weeks.
On those facts, the Tribunal found that the employee had not resigned and had not "unlawfully terminated" her contract. It concluded that the employment most likely ended by mutual consent. That distinction was decisive: the provision that removes long service leave applies only where a worker fails to give notice required by an applicable award, and neither party had treated notice as a live issue.
The Tribunal ordered the employer to pay $4,435.27 for annual leave and loading, and $10,850.02 for long service leave.
For HR teams, the decision underlines the value of clear records and clear communication. Informal arrangements, undocumented changes to hours and gaps in payroll records all counted against the employer when it sought to characterize a full-time employee as casual or part-time. And an employer that intends to treat a departed worker as having resigned generally needs to say so directly: without a clear instruction to return by a set date, a prolonged absence can be read as mutual consent rather than abandonment - and the leave remains payable.
