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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Joanne Tracy Brockman
and
National Web Directory Pty Ltd
Industrial dispute – a dispute over the entitlement to pro-rata long service leave – domestic or other pressing necessity – entitlement found – order issued
REASONS FOR DECISION
[1] On 4 April 2008, Joanne Tracy Brockman (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 National Web Directory Pty Ltd, arising out of a dispute over the entitlement to pro-rata long service leave.
[2] This matter was the subject of a conciliation conference on 21 April 2008. Appearances: Ms J T Brockman, self-represented. Ms G Walker and Mr Peter Bunn, for the respondent. Mr Bunn, who is based in Queensland, participated via telephone.
[3] The conference failed to resolve the matter. However both parties agreed that, subject to the opportunity to provide further written submissions, the Commission should determine the matter on the basis of the material before it. This is consistent with s.31(1) of the Act. Both parties effectively waived their right to a formal hearing in the interests of minimizing expense and inconvenience, given that the employer no longer has an office in Tasmania.
[4] A consequence of this approach is that the Commission does not have the benefit of sworn evidence. However in the circumstances of this case, it is not a barrier to the proper determination of the issue in dispute.
[5] Ms Brockman commenced employment on 5 May 2000 in the Hobart office. Her employment ceased on 6 July 2007. Ms Brockman claims an entitlement to pro–rata long service leave, pursuant to s.8(3)(c) of the Long Service Leave Act 1976.
[6] Ms Brockman had served more than seven years, and hence the question to be determined is whether there was a “domestic or other pressing necessity of such a nature as to justify the termination of that employment”.
[7] On 9 April 2007 Ms Brockman was called to a meeting with Ms Walker. She described the meeting and subsequent events as follows:[1]
“At this meeting, Mrs Walker informed me that at Christmas the company would be closing its Hobart office of the company. She told me I had the option of moving to Queensland to work in the Gold Coast office or that at Christmas time I’d be unemployed. We then spoke about my options and I made it clear to Mrs Walker that I did not want to move to Queensland and gave her my reasons. These reasons were that my partner, Danny, had two children from a previous relationship and I could not ask him to leave them.
Mrs Walker’s response to this was that there are always school holidays and planes. I then explained to her that the children were too young to travel alone being only five and four. I also explained that I had other things to consider such as my family who are based in Tasmania. Mrs Walker made it clear to me that if I chose not to move to Queensland that she would immediately find a replacement for me, that no-one was indispensable. When this offer was made to me other members of the office were given the option of working from home, but I was informed that this offer was not open to me.
At the end of the meeting, nothing was decided, but I said I would talk to my partner to consider the option of moving to Queensland. I couldn’t understand the reason behind the closure of the office. It was the head office. I was aware that Mrs Walker was considering going to Ireland in 2008 and thought this may have been the reason. Previously Mrs Walker had attempted to convince me to move to Queensland as she knew I was capable of running everything in her absence as I was already running most of the admin side.
She did state the company still continues to advertise on their website the contact details for a Hobart office that does not exist, so why close the office? After much discussion with my family, I came to the conclusion that I could not make the move to Queensland and I felt I had no option but to find alternative employment. I was faced with the realisation that if I informed Mrs Walker of my decision, she would immediately start looking for a replacement for me.
I could not inform Mrs Walker of my decision as I felt that if I was not able to find alternative employment I might have no choice but to make the move to Queensland as I cannot afford to be unemployed and face the possibility of not being able to meet my financial commitments and losing everything. Over the next few months I applied for many jobs and had a number of interviews. As time went by I was unable to find another job and I started to face the possibility that I would indeed have to make the move to Queensland.
I then informed Mrs Walker that I had an aunt who lives about an hour from the Gold Coast who had offered me temporary accommodation if I required, but I still never gave up hope of finding another job because I knew that moving to Queensland would spell the end of my relationship with Danny and I would be very alone and unhappy. Fortunately for me in July I was offered a position at Fruit Properties. The hours were longer and the money was a lot less than I currently was on, but I felt that as it had been my only job offer to date, that I had to take the position.
On 2 July, I faxed my resignation to Mrs Walker in the Queensland office. I waited for a call from Mrs Walker, but this never happened. I received a fax from Mrs Walker circling a Federal industrial award stating I was required to give four weeks notice, but nothing else. At around 10.30 am that morning, the previous owner of the company, Mrs Christine Sonder, arrived in the office and informed me that I was to leave the premises, that it had been arranged for a courier to collect my computer and work in half an hour.”
[8] Ms Walker’s recollection of events was as follows:[2]
“My version is completely different. In April, I did inform everybody in the office that the office would be closing in December. The reason for this closure I’d only actually decided that day. The week before I’d made that decision, Joanne had been ill and hadn’t been in to complete the work for the week, if you remember.
At the end of that week I decided to do Joanne’s work for her in order to get invoices out for the week, which is very important for the company. So I engaged the help of other staff in the office, who had informed me at that time that Joanne hadn’t been training them, and to my knowledge she’s trained very little any other staff, given them any knowledge of what she was actually doing. Between the two of us we managed to do Joanne’s work that week, and it was a hard job, because we didn’t know what we were doing.
On the Monday morning I thought Joanne would be appreciative that everything was up to date. Instead she was extremely angry. She wanted to know who had been on her computer doing her work, and at the time that I was doing it I realised Joanne was extremely behind with all her work. She wasn’t up to date. There were lots of things not done; in fact three years behind with some of the amendments. That’s when I made the decision to close the office.
Parts of Joanne’s job she was doing excellently. I had absolutely no problem with it at all. Other parts she wasn’t. I didn’t want to lose her, so I thought if she was in the Queensland office she would be under more supervision and the other admin girls were up there as well, so it would have been a lot easier. So that was my decision for closing the office, the fact that Joanne wasn’t doing her job properly, but I still didn’t want to lose her, and I told her that. She has always been a very good part of the company.
I did everything I could at that time to make it easier for her. I told her the company would pay for her belongings to be moved up there. She never told me on that day that it wasn’t a possibility. In fact, she never told me the entire year that it wasn’t a possibility, and she actually even says that here herself in her letter. It wasn’t until I actually received her resignation that I was aware that she had made a final decision. She always kept saying, “I’ll consider it. I’ll consider it.” If she had have said straightaway, “It’s not a possibility, I cannot move,” then she would have been entitled to long service, but she never said that, ever, during that whole year.
Comments did come up, like her partner, and I said, “Okay. When you come up in July” – you sort of have to have a background of our company. One month out of every year, which is in July, it’s the main part of our business. We put a book to print. That only happens over four to six weeks, once during the year. Now, Joanne was the only one that knew how to do this. Nobody else was trained to do it. So when I gave her notice in April, I said, “It’s very, very important that if you decide to leave we would need four weeks notice, absolutely have to have four weeks notice.” It would take one week to find a replacement for her and at least three weeks to train them with things that nobody else knew how to do, and she agreed to that.
I have since spoken to a solicitor and he said that that was a legal verbal contract and she should have stuck to that even though it wasn’t under the industrial relations laws. So that four weeks we always did in Hobart, and I said, “How about this year, as a suggestion, we fly you up to Queensland. You can decide when you’re up there for the four weeks putting the book together whether you would like to live up there or not, and you can make your decision then.” And she agreed to this. But now she’s saying that right from the start – so she’s pretty much saying herself that she resigned.”
[9] Ms Brockman subsequently contested that she was ever three years behind in any aspect of her work, and provided an explanation for the times she did get behind. Whilst I can understand why this issue is of importance to the parties, the reason/s for the office closure is not relevant to the application before the Commission.
[10] The undisputed facts are:
· The employer made the decision to close the Hobart office at Christmas.
· Ms Brockman was offered alternative employment in Queensland (Gold Coast), presumably at no detriment in terms of salary and conditions. In addition certain relocation expenses would be met by the employer.
· Should Ms Brockman decline the Queensland offer, her employment would cease, certainly not later than Christmas 2007.
[11] Initially Ms Brockman agreed to the four-week period in Queensland, which was to occur during July 2007. A few weeks prior to this there was an exchange of correspondence concerning a daily allowance. Subsequently Ms Brockman declined to go stating, “Unfortunately I would be out of pocket and I would prefer to do the book in Hobart”.
[12] This decision was clearly a source of considerable annoyance to the employer, necessitating accommodation and airfare cancellations and/or rearrangement. Ms Walker said:[3]
“MS WALKER: At that stage airfares were already booked and paid for. Everything was organised. This is two weeks before she was due to come up, and I had to then turn around to cancel the flights, change everything, organise a flight for myself to come down to Hobart, and we changed everything to suit Joanne. So that proves that we were trying to do everything possible – everything possible for her.”
[13] Ms Walker arranged to go to Hobart to complete the book.
[14] On 2 July 2007 Ms Brockman faxed a letter of resignation in the following terms:
“Pursuant to Clause 3, Subclause C of the Clerical and Administrative Employees Award I am hereby giving 1 weeks notice. I am resigning as a consequence of the Tasmanian operations closing at the end of the year having found that I was not personally in a position to move to Queensland and therefore having no choice but to have found reasonable alternative employment.”
[15] This was followed by more expansive correspondence from Ms Brockman on 3 July:
“I write to confirm my earlier “notice of resignation” and to more fully explain the circumstances which unfortunately have made it necessary for me to relinquish my employment with National Web Directory after seven plus years.
You would realise that following your advice in mid April that the Tasmanian Branch of the company would close at Christmas, I obviously needed to consider my future employment options.
I appreciated your advice that I may be able to continue my employment with the company if I was prepared to transfer to Queensland.
However, because of my personal and domestic circumstances of which you are aware, I was unable to consider this option as a practicable solution and consequently I would have found myself in a redundancy situation at Christmas.
Given these circumstances, I believed it to be in the best interests of my family and myself to seek alternative employment.
I am sure you will be happy to know that I have been fortunate enough to secure alternative employment and as a consequence I faxed my resignation to you on Monday morning in accordance with the Tasmanian State “Clerical and Administrative Employees (Private Sector) Award” which I understood to be the relevant award.
I understand that my wages and entitlements will be paid in the usual manner by direct debit on Thursday.
Would you also confirm that my entitlement to pro-rata long service leave will also be paid at the same time?
Thank you for your support and assistance.”
[16] Ms Brockman was effectively removed from the premises shortly after the letter of resignation was received. I can understand why Ms Brockman was disturbed by the summary nature of her departure. However given that the entirety of the data for the book was in Ms Brockman’s computer, I can similarly understand why the employer felt vulnerable and exposed, and took the actions to ensure security.
[17] The employer maintains that Ms Brockman had previously agreed to give four weeks’ notice in the event she resigned. Ms Brockman acknowledged that it would take this long to find and train a replacement, but denied that she had agreed to give four weeks’ notice.
Decision
[18] At the heart of this dispute is the employer’s contention that Ms Brockman did not at any stage formally decline the Queensland offer, even though subsequent events indicate, according to the employer, that Ms Brockman did not have any intention of accepting the position.
[19] Further, the employer contends that at no stage did Ms Brockman state that domestic circumstances would prevent her accepting the position. I note however that Ms Walker did acknowledge that Ms Brockman’s domestic circumstances were raised from time to time.[4]
[20] In written submissions, Mr Bunn said:
“Ms Brockman was advised of Queensland position on Monday 9th April, 2007. As at that date Ms Brockman had been employed for a period of 6 years 10 months 29 days.
Through deceptive tactics and misleading statements Ms Brockman was able to stall this Company for sufficient time to ensure period of service just exceeded 7 years. An example of deception is on page 3 (20) of transcript. Ms Brockman states ‘I was left with only one option, to find alternate work, while giving the impression that I was still thinking through the company’s offer’.
Ms Brockman’s statement indicates that from when she was initially asked about a move to Queensland she had already made up her mind that she would not move.”
[21] Ms Brockman, in her written submission said:
“I had every reason to believe that had I informed Mrs Walker of my decision not to go to Queensland that I would be immediately out of employment. I was faced with a tough decision and had to put myself first. When I had the initial meeting with Mrs Walker about the closure of the Hobart office she commented that ‘there were little job opportunities in Tasmania and I might as well take her up on her option to move to Queensland’ was something that I will never forget. She also made the comment ‘that no one was irreplaceable’, meaning me. It felt to me that she was trying to force something on me that she knew I did not want, had turned down in the past, but was trying to scare me with at the time.”
[22] The offer made by the employer was perfectly reasonable. It is understandable that the employer wanted loose ends tied up, and this included a definitive answer from Ms Brockman. The fact that this was not forthcoming no doubt caused business dislocation and perhaps some additional expense.
[23] Whilst this sentiment on the employer’s part is perfectly understandable, it really misses the key point.
[24] It was the employer’s decision to close the Hobart office, not Ms Brockman’s. In her written submission Ms Brockman said:
“Had I not been faced with the closure of the Hobart office I would have been happy to continue to work for the company for years to come. Despite everything, I enjoyed my job and had formed close friendships with the people I worked with.”
[25] Faced with certain unemployment by Christmas at the latest, Ms Brockman set out to protect her future by seeking alternative employment. She acknowledged that she declined to give a straight answer on the Queensland offer; because she felt that to decline the offer would result in her immediate termination without alternative employment. Given the remarks attributed to Ms Walker, and not refuted, such a fear was reasonably open to Ms Brockman. Even if it wasn’t, it would not be fatal to Ms Brockman’s application.
[26] Ms Brockman could not be compelled to give a definitive answer to the Queensland offer. She could be encouraged, persuaded, even cajoled, but not compelled. Absent a definitive response within a reasonable time frame, it would be open to the employer to withdraw the offer.
[27] It is difficult to envisage circumstances whereby an offer of employment interstate would, if not accepted, deny a pro-rata long service leave entitlement on the grounds of domestic or other pressing necessity.
[28] Ms Brockman made it clear that a move to Queensland was not impossible, but was a very poor alternative, only to be accepted in quite desperate circumstances. It would, apart from anything else, probably result in the end of her domestic relationship. The fact that she accepted a position in Hobart on less favourable terms to that which she had previously enjoyed underlines the genuineness of her fear and trepidation about the Queensland position.
[29] I have no hesitation in concluding that Ms Brockman resigned from her position with the employer on account of a “domestic or other pressing necessity of such a nature as to justify the termination of that employment”.
[30] I conclude that Ms Brockman has an entitlement to pro-rata long service leave. The order has been calculated on the basis of the applicant’s stated salary of $45448 pa.
ORDER
Pursuant to s.31 of the Industrial Relations Act 1984, I hereby order that National Web Directory Pty Ltd pay to Joanne Tracy Brockman an amount of five thousand four hundred and twenty eight dollars ($5428) by way of a pro-rata long service leave entitlement. Such payment to be made not later than 5.00pm Thursday 19 June 2008.
Tim Abey
Appearances:
Date and Place of Hearing: |
