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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Harold Henry Bowden and Kelly Gang Timbers Pty Ltd
Industrial dispute - entitlement to long service leave – illness or incapacity - application dismissed Reasons for Decision [1] On 31 March 2008, Harold Henry Bowden applied to the President pursuant to s29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Kelly Gang Timbers Pty Ltd arising out of his entitlement to long service leave. [2] Initially the matter was listed for a conciliation conference on 22 April 2008. The conference was subsequently adjourned so as to allow the parties to confer. [3] The matter remained unresolved and, at the request of the applicant, was set down for hearing in the Court House, Ulverstone at 10.30am on Tuesday, 2 September 2008. Due to the non-appearance of the applicant the hearing was adjourned until Wednesday, 8 October 2008. [4] Mr Anthony Mihal of Wash Day James Mihal Pty appeared for the applicant. Mr Matthew Verney of Verney Walker & Co, appeared for the respondent. [5] At the conclusion of Mr Bowden’s evidence Mr Verney invited the Commission to dismiss the application on the basis that the applicant had failed to establish an arguable case. [6] In a decision issued on transcript, I dismissed the application. I now confirm this decision in writing. [7] Mr Bowden commenced employment on 15 November 1993 and resigned effective from 20 December 2007, a little over 14 years employment. He claims a pro rata long service leave entitlement. [8] Mr Bowden gave evidence of workplace accidents which occurred in 2001, 2003 and 2006. On each occasion the accidents resulted in back injury. It would seem that after treatment Mr Bowden was able to return to work. [9] Mr Bowden’s evidence was that in the six months prior to his resignation he was not suffering any ill effect from the earlier back injuries. Indeed he said that he simply had had enough of sawmills and "just wanted to go and get out and do something else because I’ve been in the sawmill since I was 15." [10] Section 8[3][b] and [c] of the Long Service Leave Act 1976 provides that a pro rata entitlement arises when the employment is terminated because of illness or incapacity of such a nature as to justify the termination of that employment. [11] I have no doubt that Mr Bowden had good and sound reasons for resigning his employment. However from the evidence it is very clear that those reasons did not fall into the category of illness or incapacity. [12] Accordingly the application is dismissed. I so order.
Tim Abey Appearances: Date and place of hearing:
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