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T11933

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Neville James Bosworth
(T11933 of 2005)

and

Australian Bulk Minerals

 

COMMISSIONER T J ABEY

HOBART, 5 May 2005

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:

"8A. Period of long service leave to which mining employees are entitled

    ...

    (3) Subsection (2)(b) applies to -

      ...

      (b) an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment;

      (c) an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment; and

    ..."

[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

"And can you tell the Commission what you stated to the pit supervisor before you filled out your resignation form?---Yes, just that I would be leaving and the reasons why I would be leaving, because of my back - it wasn't good - and I was having a bit of strife at home. Yes. Yes, that is it."

[9] Mr Popowski's recollection of this conversation was:2

"All right, and if you could just describe the circumstances of - and what - just to reinforce what Mr Bosworth said to you when he resigned on I think 9 September, could you just repeat that to the Commission?---On the 9th, Neville rang me - it was on his days off, and I was working - and he rang and said that he was resigning. I knew that he had four months with Linfox prior to that and I said to Neville - and the milking season was coming back on again - I said, "Oh, you've picked up another job with Linfox, have you?" and he said, "Yes, that's correct."

Right, okay. So did he make any mention of any other circumstances at that time?---No."

[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:

"He would go to a doctor and have that sorted out."

[13] On that same day Mr Bosworth completed an Employment Termination Form3 which listed the reason for termination as:

"Job change/family reasons/health reasons."

[14] Questioned as to the reasons for termination, Mr Bosworth said:4

MR HINDS: Mr Bosworth, what were the major factors for you leaving ABM?---It was the condition of my back.

Can you expand on that?---Yes. Well, I have got a medical condition, scoliosis. Scoliosis - it has caused two discs in my back to wear, and that has reduced the space between the vertebrae and causes nerves to get pinched. And also there is an arthritic conditions as well.

Why is it easier to work with your current employer rather than Australian Bulk Minerals on heavy mobile equipment?---It is just not as rough. I don't get jarred and jolted and shaken around constantly. I am on main roads and in fairly late model equipment with air suspension and that in it, and good comfortable seats.

So you are saying there is a distinct difference from your current employment to the employment at Australian Bulk Minerals as in the roughness of the driving?---Yes, it is a more back-friendly environment.

You mentioned when you gave your resignation to Australian Bulk Minerals that you had a personal reason. Would you tell the Commission what your personal reason was, please?---Yes. My personal reason related to a marriage break-up. My wife - she moved out of home and took the kids with her, and because I worked away I just wasn't seeing enough of my kids."

[15] Under cross-examination, Mr Bosworth said:5

You had it lined up before you left?---Yes.

Okay. And you knew what the job was going to be because you had done it the previous year?---Yes.

Right, okay. So can I put to you then, the fact that you had the job lined up before you leaving ABM, that that was the real and primary reason for you leaving ABM?---No. No, I took that job because of my back condition, and it would have allowed me to spend more time with my children."

Medical Evidence

[16] By letter dated 8 October 2004 to ABM, Dr Craig Bowker advised:6

"Mr Bosworth has degenerative thoraco-lumbar spinal disease (copy of recent X-ray report included), the nature of his spinal condition is such that it is inadvisable for him to continue to perform work duties such as those he was previously performing at the Savage River Mine."

[17] The accompanying X-ray report, dated 23 September 2004, reads in part:7

"CLINICAL DATA: chronic back pain, low lumbar region. Has probable fixed scoliosis. ? degenerative disease vs work related aetiology.

...

CONCLUSION:

The dominant abnormality would appear to spondylotic change with disc degeneration at L4/5."

[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

"Okay, two years. During that two years, did you have any evidence of any back complaint, particularly the complaint which is being referred to in the medical certificates?---Yes. I am not quite sure what you mean. Are you asking had I gone off work sick with that back - bad back - - - 

Yes, that is right?---A lot of the back trouble I had was on my days off. I would go to work and work my four days and I would go home and then I would be really sore. And yes, I used to attend the doctor - - - 

So what you are saying is that the time you had off was - actually during your days off rather than work time?---Yes, that's how it worked out."

[20] And later:9

"Right, okay. But you worked for a couple of years on the excavator without any complaint to the company at all about your back?---No, I didn't complain because it wasn't - I didn't think it was a work-related thing. It wasn't a compensation issue or anything like that, it was just something that I had and had to live with and put up with."

[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

"Thank you for your correspondence regarding Mr Bosworth.

It is my understanding that Mr Bosworth has resigned from Australian Bulk Minerals. Although the full details of his actual job were not available to me I understand that his position is classified as "light sedentary work". Further it is my understanding that Mr Bosworth had utilised 3.0% of his available sick leave entitlements.

After leaving his employment Mr Bosworth has produced a certificate from Dr Craig Bowker, general practitioner, to the effect that Mr Bosworth is no longer able to continue in his employment as a result of his back condition. To support this Dr Bowker states that Mr Bosworth has "degenerative thoraco-lumbar spinal disease, the nature of his spinal condition is such that it is advisable for him to continue to perform work duties such as those he was previously performing at the Savage River mines".

Undoubtedly Dr Bowker means well with this statement. However it is appropriate to acknowledge that Mr Bosworth is a 41-year-old man and if x-rays were taken on 100 men of this age the vast majority would have degenerative changes of the thoraco lumbar spine. Degenerative changes are part of the normal ageing process, it is similar to the development of grey hair, going bald and other bodily changes consistent with ageing. Appropriate advice for Mr Bosworth would be to remain active, keep himself physically fit and to continue in employment.

Nevertheless it is not unusual to find that someone who has a history of chronic back pain or non-specific back pain is labelled as having pain due to degenerative back changes. The medical or scientific evidence does not support the concept that degenerative back changes are painful. For this medical certificate to have a level of credence I would have anticipated that Mr Bosworth had a long history of medical sickness or absence from work due to "a back condition". Mr Bosworth does not have a long history of either a sickness or absence from work due to his back.

Therefore it is my opinion that this medical certificate on the grounds of available evidence cannot be substantiated.

Should you have any queries or require further explanation please contact me."

[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:

"... because I worked away, I just wasn't seeing enough of my kids."

[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:

"(1) Was the reason claimed for termination one which fell within the section?

(2) Was such a reason genuinely held by the worker and not simply a rationalisation?

(3) Although the reason claimed may not be the sole ground which caused the employee to decide to resign, was it the real or motivating reason for it?

(4) Was the reason such that a reasonable person in the employee's position might have felt compelled to resign?"

[37] Guidance may also be found in Franks v Kembla Equipment Co. Pty Ltd12 in which Sheldon J. observed:

"The test, I would suggest is whether there is a really serious problem in the home although not necessarily a crisis. On the one hand the colourable and frivolous should be rejected but on the other, over-exacting standards should not be adopted. After all, what is being dealt with is not a sphere shaking issue but a reason for terminating employment and a material consideration must be whether the domestic situation is such that a reasonable man might feel compelled to seek its solution by terminating his employment."

[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
COMMISSIONER

Appearances:
Mr C Hinds, of the Construction, Forestry, Mining and Energy Union, Tasmanian Branch, for Mr N J Bosworth
Mr W J Fitzgerald, of the Australian Mines and Metals Association (Incorporated), with Mr J Galbraith and Mr K Popowski, for Australian Bulk Minerals

Date and Place of Hearing:
2005
April 6
Ulverstone

1 Transcript PN 33
2 Supra 360
3 Exhibit A5
4 Transcript PN 22 to 26
5 Supra 173 to 175
6 Exhibit A1
7 Exhibit A2
8 Transcript PN 79 to 81
9 Supra 150
10 Exhibit R1
11 1983 AILR 556
12 1969 AILR 55