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T11016

 

TASMANIAN INDUSTRIAL COMMISSION

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

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(T11016 of 2003)

and

Australian Weaving Mills

 

COMMISSIONER P C SHELLEY

HOBART, 5 April 2004

Industrial dispute - pro rata long service leave - domestic or other pressing necessity - order issued

REASONS FOR DECISION

[1] On 18 August 2003, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Australian Weaving Mills arising out of a dispute over the entitlement to pro rata long service leave due to medical problems. The application was later amended to include a claim for entitlement due to pressing domestic necessity.

[2] A hearing commenced at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania on Monday 24 November 2003. On that day Mr P Baker appeared on behalf of the applicant union and Mr A Cameron of the Tasmanian Chamber of Commerce and Industry appeared on behalf of the employer, together with Ms F Jordan and Mr D Layton from Australian Weaving Mills. The hearing continued on Tuesday 24 February 2004. On that date Mr S Cornish appeared for the employer, with Mr M Bessell and Ms F Jordan.

BACKGROUND

[3] This is a dispute regarding the entitlement to a payment for pro rata long service leave pursuant to section 8(2)(b) of the Long Service Leave Act 1976 ("the Act") which provides:

"in the case of an employee to whom this paragraph applies by virtue of subsection 3 who has completed 7 years' but has not completed 15 years' continuous employment with his employer such period of long service leave as bears the same proportion to 13 weeks as the total period of the employee's continuous employment with his employer bears to 15 years.

(3) Subsection 2(b) applies to -

    ...

    (b an employee who terminates his employment 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;..."

[4] The employee concerned, Mr Anthony Brian Kelk, commenced employment with Australian Weaving Mills ("the company") in April 1993. He remained in that employment for a little over ten years.

[5] Mr Kelk was employed as a textile mechanic on permanent night shift. Up until the date of the termination of his employment the company operated a system of rotating day and afternoon shifts and permanent night shifts. When Mr Kelk commenced employment it was on the basis that his position was on the permanent night shift. His hours of employment were from 11pm until 7am.

[6] On 6 June 2003 he gave notice in writing of his intention to resign from his employment, effective from July 4 2003. At that time, his weekly wage was $681.72, plus a shift allowance of $148.20.

[7] Mr Kelk's family circumstances were that he was married with two children, who, at the time of the termination of his employment, were aged nine years and two and a half years. His wife worked casually from about 9am until 3pm. It is common ground that there had been discussions in relation to Mr Kelk's request for relief from night shift for some time prior to his resignation.

[8] Immediately after Mr Kelk ceased work with Australian Weaving Mills he commenced employment with H & R Block Tax Accountants. He is currently working on a casual part-time basis, less than 20 hours per week. In addition, Mr Kelk, in partnership with his wife, operates a company called Fundamental Computer Services, which was formed in 2000.

[9] Mr Kelk contends that the reason he resigned from his employment with Australian Weaving Mills was that his family life and his health were adversely affected as a result of working permanent night shift. The company contends that the real reason for his resignation was that he was seeking a "sea change" and so that he could take up employment with H & R Block.

THE EVIDENCE

Documentary Evidence

[10] Tendered as evidence by the applicant were a series of emails between company supervisors - Mr David Layton, Ms Wendy Poynton and Mr Michael Bessell.

[11] The relevant extracts said:

[12] From Mr Layton to Ms Poynton dated 29 May 2003.

"...Now Tony saw me and the upshot is he wants off night shift for what he says are personal reasons...Tony said he wants 2 months off work starting July and also if he can only work 3 days per week. While I have sympathy for his position and will try to accommodate him as I did by getting him onto weekend shift without some real evidence such as a medical cert. I have to be careful how I tread otherwise I will have many such requests. I want to do whatever I can to help but at the same time I cannot make exceptions without some very valid evidence.

[13] From Mr Layton to Ms Poynton dated 2 June 2003.

"...Please tell Tony that I have no news for him but will get back to him later this week..."

[14] From Mr Layton to Mr Bessell dated 6 June 2003

"Could you please ask ALL textile mechanics if they are willing to rotate onto night shift on a monthly basis. I have a situation of a night shift mechanic who wishes to get some relief from permanent night shift...can I be given the outcome by June 18th......"

[15] From Mr Layton to Ms Poynton dated 17 June 2003

"...Make sure that Tony is aware of the notice re mechanic required for the project team...Will last about three months...After that no guarantee he won't go back onto night nor he will be selected for the team but if he does not put his name down he can't be considered..."

[16] From Mr Layton to Ms Fan Jordan dated June 19 2003

"...Tony Kelk has not put his name down to go onto the project team so I "assume" that he will now leave as indicated. With the downturn in volume I have to now start looking at staffing levels overall..."1

[17] A medical certificate from Dr Suren Walker was tendered, dated 13 June 2003, which said:

"....Mr Anthony B Kelk...has been rostered on night shift duties at wrok which has adversely affected his sleep pattern. He has found that being unable to sleep adequately has resulted in excessive tiredness. Impaired his concentration and is affecting his family life.

As a consequence he is unable to continue in his usual occupation given the volume of night shift duties that he has had to do.

..."2

[18] Mr Kelk's letter of resignation, dated 6 June 2003 said:

"Dear David,

After our conversation this morning regarding my moving on to a fairer system of work hours I have decided to submit my resignation effective July 4 2003.

As you know the majority of time while I have been working at Australian Weaving Mills I have done so on Night shift. This has put a strain on my marriage because of my sleeping during the evenings, my irritability towards my children and my sense of always being tired.

I cannot jeopardise my relationship with my family for work commitments. I have on more than a few occasions asked my immediate manager, Michael Bessell and yourself, if I could get a permanent change from night shift and all I was offered was a temporary fix of a month or two and a weekend shift that never eventuated. In my most recent request I have asked that I have a more permanent change to my working hours and I put forward a few options.

Unfortunately at the present time the company cannot fulfil my request for a fairer system for myself, hence this letter.

Until the company position of fairer work hours for all is rectified the problem of the night shift worker being discriminated against will not disappear. I will go but in the future the problem will raise its ugly head again. Please don't let this company policy force you to loose (sic) more good people.

..."3

[19] Also tendered was a letter from H & R Block confirming that Mr Kelk had been employed from Friday 4 July 2003 on a casual basis.4

[20] In the evidence was a Profit and Loss Statement for Fundamental Computer Services for the period 1/07/2003 to 30/06/03 showing a total income of $5,324.00, a gross profit of $3,652.24 and a net profit of $957.52.5

[21] A testimonial signed by Mr Cliff Jones in relation to Mr Kelk was tendered by the respondent. It said:

"...

Re: Testimonial Mr. Anthony Kelk

To whom it may concern

...

Approximately 2 years ago Anthony and I started a small business in computer support. The registered name of the business is Fundamental Computer Support. The business was made necessary due to a very busy and demanding hobby of computer repair, upgrade, software/hardware installation and support...

I have since left the business as a partner. However Anthony has nurtured the business and has several businesses as clients, which include network administration, as well as a healthy number of private clients.

..."6

Witness Evidence

[22] Mr Kelk gave evidence for the applicant. Mr Cornish, for the company, said that they had intended to call Mr Layton as a witness, but he was unavailable. No other witnesses were called by the company.

[23] Mr Kelk testified that the original contract of employment was that he would work permanent night shift. During the past ten years he had on two or three occasions worked on the rotating day and afternoon shift.

[24] His evidence was that the night shift had become an issue for him was when his youngest child ceased having an afternoon nap and as a result became more demanding. Mr Kelk said that:

"Because of this I sort of was on flat out all day looking after him, which increased my tiredness. My young fellow came home from school probably 3.30. He demanded time of me.

...so I wasn't getting to bed until probably five, 5.30, very minimal sleep. The children are very demanding, and it was starting to get very irritating to me and arguments arose between myself and my wife relating to that, my constant irritability towards my children. And, yes, that's why I wanted to get off the shift."7

[25] Mr Kelk said that in January [2003] he mentioned to David [Layton] that things "were starting to get a bit hectic at home" and suggested the weekend shift as an ideal way of getting over the problems. Unfortunately, he was not the successful applicant for a position on the weekend shift. Subsequently, the successful applicant turned out not to be suitable and Mr Kelk was offered the position. Unfortunately, due to a downturn in April, the position was scrapped and he never got to take it up.

[26] Mr Kelk's evidence was:

"...I was left with no basic hope of getting off shifts, so I went back to Dave, and said, "Look, we need to do something about it." And I probably approached him two or three times within those two months regarding that. On the last occasion, it was a week before I resigned, I asked David, "Look, I need to get off. Otherwise I need to give the job away." He said, "Give me a week to look into it." He looked into it, and unfortunately at the end of that week he said the company couldn't do anything at that particular time. So I tendered my resignation."8

[27] He was aware that Mr Layton had been making enquiries of other people to see if they could swap shifts.

[28] During cross-examination, Mr Kelk said that he gave Mr Layton three options: to work only three nights per week; having two months off, commencing in July; and going on to a rotating shift, probably a month about. My Layton had said that he would look into these propositions. Mr Kelk said:

"I made it clear to him that I was getting near the end of my tether, and a two month break would certainly be a lot better than leaving altogether."9

[29] It was put to Mr Kelk that the period of time he gave Mr Layton to make a decision was very short. He said:

"...Well, I was at the end of my tether. I'd been talking with the company since the weekend shifts had started, which was in January. Oh, it was actually before January when that decision was made, I think. Yes six months was about the end of my tether, yes."10

[30] Mr Kelk said that [after ceasing work with Australian Weaving Mills] he worked for H and R Block for around 20 hours a week, but that had since decreased. He said that the original employment was only for eight weeks [the tax season], after which it would normally cease. He had been kept on.

"At the moment I vary my hours, five to 10 hours a week"11

[31] In relation to Fundamental Computer Services, Mr Kelk's evidence was that the company was formed in 2000.

"We started it up basically as a hobby, and pretty much that's how it's remained until present."12

[32] He said that his client base was:

"...a small base of customers, probably two or three permanent ones. The others are just basic people that ask for my assistance in bits and pieces and that's the way it's remained.13

[33] When cross-examined, Mr Kelk was referred to the testimonial from Mr Cliff Jones, and its description of the client base. He said that the testimonial was "misleading", and gave precise details of the client base, which was one network client, two other businesses, plus one recently acquired within the last one or two months [after the resignation].

[34] Mr Kelk said that the net profit for the year 2002 to 2003 was $957.52. His charge-out rate was $45.00 per hour, which had equated to 81 hours of work over the whole of the financial year, averaging one and half hours per week.

[35] In early 2003 Mr Kelk completed a course with H & R Block that was for three hours in the morning, once a week, for twelve weeks.

[36] He denied that it was because he was planning a career change:

"No, it was actually to help me out with the business.

Does a taxation consultant help you out in your business?........No, it's actually a taxation course....when you first take on the job it is made clear to you that there is no employment that they will be offering at the end of this course. It is actually a course to learn you about taxation claims and the like.

Understood. But the purpose of the H and R Block course is specifically to train as H and R Block tax consultants?......That's right."14

[37] Mr Kelk said that he could not recall the date that he was offered the position with H & R Block; it would have been very close to the date that he resigned, but was before the date of resignation. He agreed that he had a part-time job to go to when he resigned from the company.

[38] The date of the letter of resignation was 6 June. Mr Kelk's evidence was that he saw Dr Naka on 13 June. It was the first time he had seen a doctor, because, he said:

"Tired is a personal feeling, not so much a medical ---

So it is not a medical condition, it is just a personal condition?..........Well, it's in the eyes of the person that's tired.

But you just suggested it is not a medical condition?......Well, obviously not.

Well therefore your claim for long service leave under section 8(3)(b) for:"If employment is terminated on account of illness of such a nature as justify termination of employment.." doesn't apply?...No."15

[39] Mr Kelk said that during his time with the company he had time off through sick leave, supported by statutory declarations, and giving as reasons tiredness. He had not sought any professional help or medical advice. He denied that the reason he had left the company was because he had a job with H & R Block.

[40] Mr Kelk testified that the reason for his resignation from the company was:

"...the way I was starting to interact with my family...being constantly tired and irritable towards my children was starting to create a lot of problems between my wife and myself with arguments and the like."16

SUBMISSIONS

For the Applicant

[41] Mr Baker, for the applicant, said that the employer had suggested that the real reason for the resignation was that Mr Kelk had another job to go to. Whilst that employment commenced on 4 July [the day after the last day of his employment with Australian Weaving Mills], it was not in substitution of the position Mr Kelk had held. He left a permanent full-time position to take a casual position in another field of work.

[42] In the applicant's submission, there had been an ongoing issue regarding permanent night work. There had been discussions with his immediate supervisor. He had said he could not continue because of the way it was impinging on his personal and private life. He had said that if something could not be done he would have to resign. That is, in effect, what happened.

[43] Mr Baker referred to the tests adopted in the decision of the New South Wales Industrial Commission in Court Session in Computer Sciences of Australia Pty Ltd v Leslie [1983 AR 828] ("Computer Sciences"). These four tests have been applied in a number of decision of this Commission. They are:

Firstly, was the reason given by the applicant as the reason for the termination one which fell within the Act?

[44] Mr Baker said that the reason given clearly falls within subsection [8](3)(c) of the Act, that is, there was a pressing necessity that required Mr Kelk to give notice.

Secondly, was such an opinion genuinely held by the worker and not simply colourable or a rationalisation? Meaning not simply an opinion he claimed he held to justify a position he adopted at the time?

[45] According to Mr Baker's submission, Mr Kelk's verbal evidence, his letter of resignation and the conversations noted by Mr Layton in electronic correspondence documented his genuinely held opinions.

Thirdly, although the reasons claimed may not be the sole grounds which activated the worker in his decision to terminate, was it the real or motivating reason?

[46] Mr Baker said that the submissions and the evidence showed the motivation for Mr Kelk in tendering his resignation.

Fourthly, was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate the employment?

[47] In Mr Baker's submission, a reasonable person would have acted in the same manner as Mr Kelk. He spent six months trying to arrive at a solution but his efforts proved fruitless, and he felt that he had no alternative but to seek relief through resigning.

For the Respondent

[48] Mr Cornish, for the respondent, submitted that the application under section 8(3)(b) [termination on account of illness] had been "put to bed."

[49] In terms of the Computer Sciences case he agreed that the application fell within the terms of the Act.

[50] In relation to the second test: "Was the such an opinion genuinely held by the worker and not simply colourable or a rationalisation?..", Mr Cornish said that Mr Kelk had some difficulty. He had taken a vocational course earlier in the year, specifically designed for [those wishing to become] an H & R Block tax consultant. He had been looking for a sea change from early on in the year. There had been no indication to the employer, apart from the odd conversation, that there was trouble at home.

[51] Mr Cornish submitted that the genuine reason was the desire for a sea change, a new life. Mr Kelk had not spoken to his family doctor about his tiredness, nor had he sought counselling for his marital difficulties. The only fact which supports the second test is that he did try to change the shift roster. All other factors go against it.

[52] Mr Cornish said that the answer to the third test is "no". [The test is] "Although the reasons claimed may not be the sole grounds which activated the worker...was it the real or motivating reason?" The real motivating reason is a sea change. He wanted a change of lifestyle. He completed his vocational course. He applied for and got the job, admittedly casual, at H & R Block.

[53] The final test: "Was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate his employment?" fails, because, Mr Cornish said, a reasonable person would give more than five or six days before tendering his resignation. The time between the "flurry of emails" and the resignation was only six or seven days. He knew that it would take a long time to try to alleviate his situation. He knew that changing shifts at short notice was nigh impossible.

[54] In the respondent's submission the four wings of the Computer Sciences case fail, therefore the application must fail.

FINDINGS

[55] I shall deal separately with the two `arms' of the application.

[56] Firstly, the application pursuant to s.8(3)(b): an entitlement to pro rata long service leave for an employee who:

"...terminates his employment on account of illness of such a nature as to justify the termination of that employment."

[57] I dismiss that aspect of the application for the following reasons:

[58] Despite the existence of a medical certificate, there is insufficient evidence to support the existence of an illness prior to the date of the resignation. The date of the letter of resignation was 6 June 2003. The date of the doctor's certificate was 13 June 2003. During the proceedings it was agreed by Mr Kelk that tiredness is not, of itself, a medical condition. I do not necessarily agree with that observation, but I accept that, in these circumstances, the tiredness suffered by Mr Kelk was not an illness of such a nature as to justify the termination of his employment.

[59] Mr Kelk's evidence was that he had not sought medical attention before making the decision to resign.

[60] Whilst the failure to seek medical attention might not be fatal to an application in different circumstances, when considered in connection with the fact that the evidence of Mr Kelk himself was that he did not consider his tiredness to be a "medical condition", I find that the real and motivating reason for the decision to termination was not as a result of illness of such a nature as to justify the termination of employment.

[61] The second aspect of the applicant's claim pursuant to s.8(3)(c) of the Long Service Leave Act is that Mr Kelk terminated his employment:

"..on account of...domestic or other pressing necessity of such a nature as to justify the termination of that employment."

[62] I refer to the tests as outlined in the Computer Sciences case.

1. Was the reason given by the applicant as the reason for the termination one which fell within the Act?

[63] The evidence of Mr Kelk was that there was a strong link between his tiredness and irritability and the fact that he permanently worked night shift. He was finding difficulty in managing both his work and his family life.

[64] When directly asked what the reason for the termination of his employment was, Mr Kelk said that his constant tiredness and irritability "was starting to create a lot of problems between my wife and myself with arguments and the like."

[65] In my view, the reason given falls within "domestic necessity" referred to in the Act, and I find accordingly.

2. Was such an opinion genuinely held by the worker and not simply colourable or a rationalisation?

[66] The ongoing attempts by Mr Kelk, prior to the giving of notice, to alter the permanent night shift arrangement and the reasons he gave at the time of seeking those changes lend support to a conclusion that Mr Kelk was genuinely of the view that his working arrangements needed to change because of his deteriorating family situation.

[67] The reason that he gave in his letter of resignation: "I cannot jeopardise my relationship with my family for work commitments" clearly states what his opinion was at the time; this is supported by his evidence, which was not challenged, that he told his supervisor that if the working hours were not altered, he would have "to give the job away."

[68] I find that the opinion held by the worker, ie that he considered that he had no choice but to leave his employment because of the detrimental effect that working permanent night shift had on his family situation, to have been genuinely held.

3. Although the reasons claimed may not be the sole grounds which activated the worker in his decision to terminate, was it the real or motivating reason?

[69] It does not follow, as asserted by the respondent, that the fact of Mr Kelk acquiring skills which would assist in performing work of a different nature, ie, tax accountancy, shows that the real and motivating reason for the termination of his employment was so that he could pursue a different career.

[70] There is nothing remarkable in a worker, who is having difficulty in managing both their family circumstances and their job, retraining or developing skills which might assist him or her in obtaining alternative employment should it be necessary to terminate their current employment. It is only prudent. It does not negate or detract from the reasons that led them to consider terminating their employment in the first place.

[71] Mr Kelk's evidence was that, had the company acceded to requests to change the working arrangements, or to grant two months leave, Mr Kelk would not have resigned. This aspect of his evidence was not challenged.

[72] I reject the argument that the real and motivating reason for the termination of the employment was a desire for a "sea change". I do, however, accept that the employee was seeking a change in his working life, specifically, a change in working hours, in order to accommodate his family circumstances. He tried achieving the change when he attempted to negotiate different working arrangements with his employer. It was only after that failed that he resigned.

[73] I completely discount any suggestion that the reason for Mr Kelk's tiredness was due, not to the permanent night shift, but to the time spent on his own business, Fundamental Computer Services. The evidence, which I accept, was that he spent an average of one and a half hours per week on that business. He spent his days caring for his youngest child, from about 9am until 3pm each day. He went to bed at about 5.30pm and then he attended for work at Australian Weaving Mills between 11pm and 7am. This would allow, at most, five hours of sleep on working days.

[74] I accept that Mr Kelk's family circumstances were made extremely difficult because of tiredness and irritability caused by the combination of young children, responsibility for child care, and permanent night shift, and that was the real and motivating reason for the termination of his employment.

4. Was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate the employment.

[75] Mr Kelk said, as quoted above, that he could not jeopardise his relationship with his family because of his work commitments. That is a reasonable position.

[76] Mr Kelk had tried, unsuccessfully, to alter his working arrangements so that he could better manage his family situation. I am of the view that he did everything that a person might reasonably have been expected to do, including putting forward a number of proposals to the company, none of which were adopted as at the time of his termination.

[77] The respondent claimed that it was not reasonable for Mr Kelk to resign because he did so only "five or six days" after the "flurry of emails". However, the evidence shows that he had suggested a change to the weekend shift in January 2003, six months before the resignation, and, during the two months after April, he had approached his supervisor two or three times, the last being a week before he resigned. The last approach activated the "flurry of emails". We are not to know whether each of his previous advances also resulted in a "flurry of emails". We do know, however, that his previous advances had not resulted in any lasting changes being made. In his words, he was "at the end of his tether".

[78] Whilst the timing of the actual resignation may have been influenced by the knowledge that he would have two months of casual part-time work with H & R Block during the tax season, I consider that six months of ongoing fruitless attempts to have changes made to the permanent night shift arrangement, in circumstances where it was adversely affecting family relationships, would be sufficient for a reasonable person to feel the need to terminate the employment.

[79] I find that Mr Kelk terminated his employment on account of domestic necessity or such a nature as to the justify the termination of his employment, and, accordingly, that Mr Kelk has an entitlement to pro rata long service leave.

ORDER

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T11016 of 2003, that Australian Weaving Mills of Tasman Street, Devonport, Tasmania 7310 pay to Mr Anthony Kelk of 21 Henry St Devonport 7310 the sum of Seven Thousand Three Hundred and Sixteen Dollars and Six Cents by close of business on Monday 26 April 2004.

 

P C Shelley
COMMISSIONER

Appearances:
Mr A Cameron for the Tasmanian Chamber of Commerce and Industry Limited with Miss F Jordan and Mr D Layton of Australian Weaving Mills on November 24 2003.
Mr S Cornish of the Tasmanian Chamber of Commerce and Industry Limited with Miss F Jordan and Mr D Layton on February 24 2004.
Mr P Baker of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

Date and place of hearing:
2003
September 29
Ulverstone
2004
February 24
Burnie

1 Exhibit A1
2 Exhibit A2
3 Exhibit A2
4 Exhibit A2
5 Exhibit A3
6 Exhibit R1
7 Transcript PN143-144
8 Transcript PN148
9 Transcript PN228
10 Transcript PN246
11 Transcript PN160
12 Transcript PN163
13 Transcript PN172
14 Transcript PN292-294
15 Transcript PN305-309
16 Transcript PN324