“All such special holidays shall be on average weekly taxable earnings as defined by the Holidays Act 2003”.

The employee is terminating and we have agreed to pay out the leave on termination, however, there is disagreement about the interpretation of the payment.
I think the term defines that we are to pay the leave based on ADP as that term is defined in the Holidays Act.

The employee thinks the term defined as Long Service Leave should be paid the same way as Annual Leave (which also uses ADP) as outlined in the Holidays Act.

Who is right?
(It should also be noted, that the employee became our employee as the result of an acquisition whereby the employees were brought on on existing terms and conditions – which are different to our existing LSL terms which pay ordinary rate only).

A: There is a bit of confusion in what you have stated below;

Long service leave has nothing to do with the Holidays Act as it is an agreed term, so how it is paid is based on what was agreed.  It could have been agreed to paid it under the calculations of the Holidays Act which then usually would be the greater of AWE and OWP not ADP.