T3246
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Shop Distributive and Allied Employees' Association - and QUADRANT PLAZA UNDERCOVER MARKET
Non-payment of sick leave REASONS FOR DECISION This matter concerns an application for a hearing by the Shop Distributive and Allied Employees' Association - Tasmanian Branch (SDA) to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act 1984. In its application the SDA described the dispute in the following terms: "ON PRODUCING A DOCTORS CERTIFICATE, A DISPUTE HAS ARISEN BETWEEN OUR MEMBER, S. THURECHT AND HIS FORMER EMPLOYER OVER NON PAYMENT OF SICK LEAVE ENTITLEMENT. THE ASSOCIATION SEEKS HIS AWARD ENTITLEMENT BE PAID IN FULL UNDER CLAUSE 31 OF THE RETAIL TRADES AWARD." At the commencement of the hearing Mr Fruin raised a threshold question challenging the right of the SDA to represent the ex-employee of "Quadrant Plaza Undercover Market" in the circumstances existing. Mr Fruin relied upon the provisions of Section 65 of the Act, particularly subsections (a) and (c). He sought to draw comfort from the fact that:
Mr Griffin refuted that Mr Thurecht is not now a member of the SDA. He was not previously a member but joined subsequently to his termination of services. The Commission ruled that there was no impediment to the SDA proceeding to prosecute its case on behalf of Mr Thurecht for reasons which would follow. Those reasons are now issued: 1. Section 29(1) of the Act provides that an organisation or a private employer may apply for a hearing, and the SDA is an organisation, as defined. 2. Section 29 of the Act is capable of standing alone from Section 65. The former is not a qualified provision, but the latter is so prefaced by the expression "Subject to this Act ...". 3. Sections 29, 30 and 31 should be read as a whole. In particular Section 30(3) enables the President to exercise the power conferred on him by Section 30(1) "in such manner as he considers appropriate in the circumstances", as follows: "(3) Where the President is notified by an employer or an organisation that an industrial dispute has arisen or is likely to arise, the President shall, if he is of opinion that it is desirable to do so for the purpose of settling or preventing, or attempting to prevent or settle, the dispute, exercise the power conferred on him by subsection (1) in such manner as he considers appropriate in the circumstances." And Section 30(5) provides that the President may require the attendance of not only a person engaged in, or connected with, the particular industrial dispute, but any person whose presence is likely, in the President's opinion, to be able to assist in the resolution of the industrial dispute, i.e.: "(5) A summons under subsection (1) may be given not only to a person who is engaged in, or connected with, the industrial dispute to which the summons relates, but also to - (a) a person who is engaged in or connected with a dispute relating to industrial matters and related in any way to that industrial dispute; and (b) a person whose presence at the conference to which the summons relates would, in the opinion of the President, be likely to be conducive to the prevention or settlement of that industrial dispute." This provision is further enforced by Section 29(3) which is similarly expressed, i.e.: "(3) Where the President convenes a hearing under subsection (2), he shall cause notice of the time and place of the hearing to be given to a person who, or an organisation which, he considers will be able to assist in the settlement or prevention of the relevant industrial dispute." The SDA claim is that Mr Thurecht is entitled to one week's ordinary pay in respect of his last week of employment when he was sick. Clause 31 of the Retail Trades Award applies in this instance, and provides as follows: "31. SICK LEAVE (a) An employee other than one engaged as a casual or part-time employee mentioned in subclause (b), Clause 24 - Part-time Employees of this award, who is absent from work on account of personal illness or on account of injury by accident shall be entitled to leave of absence without deduction of pay, subject to the following conditions and limitations - (i) he shall not be entitled to such leave of absence for any period in respect of which he is entitled to workers' compensation; (ii) he shall, as soon as possible and where practicable within one hour of the commencement of the employees normal working day, inform the employer of his inability to attend for work, and as far as may be practicable, state the nature of the illness or injury and the estimated duration of absence; (iii) he shall prove to the satisfaction of the employer (or in the event of a dispute, the Industrial Commission), that he was unable on account of such illness or injury to attend for work on the day or days for which the sick leave is claimed; (iv) he shall not be entitled in any year to sick leave credit in excess of seventy six hours of ordinary working time. Provided that during the first three months of employment, sick leave shall accrue on the basis of 6.33 hours for each completed calendar month of service with the employer. (b) Sick leave shall accumulate from year to year so that any balance of the period specified in subclause (a)(iv) of this Clause which has in any year not been allowed to an employee by an employer as paid sick leave shall be credited to the employee and, subject to the conditions hereinbefore prescribed shall be allowed by that employee in a subsequent year without diminution of the sick leave prescribed in respect of that year. (c) An employer shall not be required to make any payment in respect of accumulated sick leave credits to an employee who is discharged or leaves his employment, or for any time an employee is absent from work without producing satisfactory evidence of personal illness." The employer withheld payment for the last week of employment for a number of reasons, but fundamentally because, inter alia: 1. Following the giving of one week's notice to the employee on Friday, 31 May 1991, he commented to the other employees that he would be off sick (or words to that effect) the next week. 2. He is not satisfied the employee was sufficiently sick to absent himself from work during the relevant time. 3. The employee did not go to the doctor until Tuesday, 4 June. 4. The certificate which said "unfit for work Monday to Friday" was too vague. 5. A supportive medical report obtained on 24 July 1991 was from a different doctor to the person seen originally. 6. The employee had allegedly been seen in the city during his alleged sickness. 7. Past incidents at work and warnings issued. The SDA argued that, inter alia: 1. The employee had complied with all award provisions to justify an entitlement to sick leave by:
2. That the employee, who lives alone, only left home for short necessary periods. 3. The employee was ill the previous week and this was known to and accepted by the employer because a medical certificate was produced. Witnesses gave sworn evidence on both sides and copies of various documentation was submitted for the Commission's benefit. I indicated on transcript that, in accordance with Clause 31(iii) of the Retail Trades Award, that Mr Thurecht have proven to my satisfaction that he was unable on account of an illness to attend for work on the five days for which sick leave is claimed. That conclusion is based upon medical evidence. I do not believe there is good evidence to support the employer's general comment that: "Sometimes doctors can be deceived." Similarly it would be unfair and dangerous to subjectively judge the current claim which is supported by qualified medical practitioners against a litany of past circumstances. In my view each case must rely upon its own set of facts. My one reservation is the making of a comment by Mr Thurecht to witnesses to the effect that he would be off sick during the week he was required to work out his notice. However, allowance needs to be made for the fact that such comment may have been made in the heat of the moment. Alternatively it may well have been based upon the state of his health at the time. In settlement of this particular dispute I would now expect that payment be met, and decide accordingly.
A. Robinson Appearances: Date and Place of Hearing: |