T11933
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Neville James Bosworth and Australian Bulk Minerals
Industrial dispute - alleged entitlement to pro rata long service leave - illness or incapacity - domestic or other pressing necessity - order made REASONS FOR DECISION [1] On 7 February 2005, Neville James Bosworth (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Australian Bulk Minerals arising out of the alleged entitlement to pro rata long service leave. [2] Mr Bosworth seeks a pro rata long service leave entitlement pursuant to s.8A(2)(b) of the Long Service Leave Act 1976. The grounds on which a pro rata entitlement arise are found in s.8A(3)(b) and (c) of the Act, which reads:
[3] Mr Bosworth commenced employment on 13 July 1999 and resigned effective from 16 September 2004. It was conceded that Mr Bosworth was a "mining employee" and hence satisfied the requisite period of service (five years) for a consideration of a pro rata entitlement to arise. [4] Evidence was taken from the applicant and Mr Kerry Popowksi, production co-ordinator at the Savage River mine owned and operated by Australian Bulk Minerals (ABM). [5] During his employment at Savage River, Mr Bosworth operated a range of vehicles (large trucks) and mobile plant. For the last two years he was an excavator operator, the most senior and highest paid operator position on the shift. This was a full-time, permanent position with an annual salary of $53901. [6] Mr Bosworth worked a four on, four off, shift roster. This arrangement meant that he would reside at Savage River for his four days of rostered work and then return to home in Devonport (approx 150 kms) for his rostered days off. [7] On 9 September 2004 Mr Bosworth telephoned Mr Popowski advising of his resignation. After some discussion Mr Popowski allowed Mr Bosworth to finish on 16 September 2004, notwithstanding that a greater period of notice was required under the ABM certified agreement. [8] It was common ground that Mr Bosworth had obtained alternative work driving for Linfox, and that he made this known at the time of resignation. He said:1
[9] Mr Popowski's recollection of this conversation was:2
[10] According to Mr Bosworth the position at LinFox was of a "casual seasonal" nature, without paid annual leave or sick leave. He would expect to be unemployed for up to four months a year. He expected to earn approx $42000 pa. [11] Mr Popowski said that Mr Bosworth inquired as to any entitlement to pro rata LSL. Mr Popowski was unsure of the requirements and referred the matter to the Mine Manager. It would seem that this in turn was referred to AMMA for advice. [12] On 14 September 2004 Mr Popowski advised that the claim was denied. It would seem that Mr Bosworth had in the meantime sought advice from his union representative and responded with words to the effect that:
[13] On that same day Mr Bosworth completed an Employment Termination Form3 which listed the reason for termination as:
[14] Questioned as to the reasons for termination, Mr Bosworth said:4
[15] Under cross-examination, Mr Bosworth said:5
Medical Evidence [16] By letter dated 8 October 2004 to ABM, Dr Craig Bowker advised:6
[17] The accompanying X-ray report, dated 23 September 2004, reads in part:7
[18] Mr Bosworth said that he had had a back condition for a "long time", which in the last six months had "started to get fairly bad". [19] Questioned as to his quite exemplary sick leave record, Mr Bosworth said:8
[20] And later:9
[21] Mr Bosworth said he had consulted Dr Bowker for the past couple of years and also sought acupuncture treatment from time to time. [22] The company submitted correspondence from Dr Tim Stewart, consultant occupational physician, which is reproduced in full:10
[23] It was common ground that at no stage had Dr Stewart physically examined Mr Bosworth. [24] Mr Popowski said that apart from a recent back injury incurred whilst at home, Mr Bosworth had not complained of any difficulties with his back during his employment at Savage River. [25] Mr Popowski said that had the company been aware of the ailment, it could have offered Mr Bosworth an alternative position, such as a truck or grader driver, which would have been less stressful on his back. Domestic or Other Pressing Necessity [26] Mr Bosworth said that he had suffered a marriage break-up, which resulted in his wife and children leaving the matrimonial home. This occurred in September 2004, the same month as he tendered his resignation. Mr Bosworth said:
[27] Mr Bosworth said that he told Mr Popowski that he "was having trouble at home", but did not go into any greater detail as he felt uncomfortable talking about it. [28] Mr Popowski said that Mr Bosworth had not mentioned his family circumstances prior to his resignation. Closing Submissions Mr Hinds, for the applicant: [29] The evidence satisfied the requirements of the Act, both as to "illness or incapacity" and "domestic or other pressing necessity of such a nature as to justify the termination of that employment". [30] Any delays in presenting supporting evidence can be explained by the lack of advice from the company as to required procedures. [31] Any suggestion of a retrospective contrivance to meet the requirements of the Act is rejected. Mr Fitzgerald, for the employer: [32] The medical evidence submitted after the event should be seen as a rationalisation or colouration, and not the genuine and motivating reason for the resignation. [33] The obtaining of alternative employment at Linfox was the prime and motivating reason for termination. [34] The medical evidence is refuted by Dr Stewart, particularly given Mr Bosworth's exemplary sick leave record, and the absence of any complaint from Mr Bosworth as to his back condition. [35] The employer had not been given any opportunity to provide more suitable alternative employment, which was available. Findings [36] The leading authority for determining questions of this nature is found in Computer Sciences of Australia Pty Ltd v Leslie11 whereby the following tests were identified:
[37] Guidance may also be found in Franks v Kembla Equipment Co. Pty Ltd12 in which Sheldon J. observed:
[38] In this case there is some conflict in the evidence as to whether Mr Bosworth identified medical and family reasons for his termination when he spoke to Mr Popowski on 9 September 2004. In my view little turns on this. Both reasons were identified in general terms in the Employment Termination Form completed by Mr Bosworth five days later. [39] It is clear that neither Mr Bosworth, nor anyone in management, were aware of the requirements of the LSL Act when he tendered his resignation on 9 September. Upon receiving advice from both the company and the union, Mr Bosworth set out to provide the medical evidence in a reasonably expeditious manner (X-ray request made on 23 September 2004). [40] The evidence as to how and when the medical evidence was provided to the company was confusing, and not something upon which I could safely draw any conclusions. [41] The test is not whether Mr Bosworth knew the requirements of the LSL Act at the time of resignation, but whether his actual reason/s for termination were genuine, and not simply a colouration or rationalisation in order to meet the subsequently learned requirements. [42] I deal firstly with the medical evidence. [43] The medical opinions from Dr Bowker and Dr Stewart are, to some extent contradictory. [44] It is of note that Dr Stewart did not actually examine Mr Bosworth and hence his opinion, whilst respected, must be seen in that context. [45] It would also seem that Dr Stewart was of the view that Mr Bosworth's ailment was a natural part of the ageing process. Such a finding is not in my view fatal to a successful application for pro rata LSL. The test is whether the illness or incapacity is of such a nature as to justify the termination of that employment. The cause of the incapacity is not material. [46] It would also seem somewhat paradoxical if Mr Bosworth was to be disadvantaged because of an exemplary sick leave record and non-complaining nature. His evidence that he frequently had a bad back on his four days off, seems plausible. In essence the roster allowed sufficient recovery time to avoid the need for sick leave. The fact that he did not complain does not in itself mean that he had nothing to complain about. [47] On balance I accept that Mr Bosworth suffers from a medical condition of such a nature as to justify his resignation as an excavator driver at Savage River. [48] Mr Bosworth's employment history at Savage River was not however limited to excavator operation. He was a skilled operator of a range of mobile plant and large trucks. The evidence of Mr Popowski was that an alternative position was available. Whilst the wage rate for any alternative position would be a relevant consideration, failure to at least explore this option does not sit comfortably with requirements of the Act insofar as an entitlement to pro rata LSL is concerned (See 1966 AILR 169). [49] Had Mr Bosworth relied solely on the incapacity ground, his claim would fail for this reason alone. [50] I turn now to the "domestic or other pressing necessity" ground. [51] The facts as to Mr Bosworth's family circumstances are not contested. The marriage breakdown, in terms of his wife and children leaving the matrimonial home, coincided with his resignation. Mr Bosworth was engaged in a remote location for four days in every eight. Given the circumstances in which he found himself, it was quite reasonable that he felt compelled to resign so as to spend more time with his children. [52] I do not accept the employer submission that the prime or motivating reason for resignation was the existence of a position with Linfox. In terms of job security and financial rewards, the alternative position was significantly less attractive. The existence of this position may have affected the timing of the resignation, but I am satisfied it was not the motivating reason for terminating his employment with ABM. [53] I find that Mr Bosworth has satisfied the requirements of s.8A(3)(c) of the Long Service Leave Act 1976 and that a pro rata long service leave entitlement arises. ORDER Pursuant to Section 31 of the Industrial Relations Act 1984 I hereby order that Australian Bulk Minerals, 60 Wilmot Street, Burnie, Tasmania 7320 pay to Neville James Bosworth a pro rata long service leave entitlement equivalent to 6.717 weeks' pay, such payment to be made not later than 5.00pm on Friday 27 May 2005.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 33 |