TASMANIAN INDUSTRIAL COMMISSION

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

Bernadette Maree Dewhurst-Phillips
(T12638 of 2006)

and

Devonfield Enterprises, North-West Day Support Service

Industrial dispute - alleged entitlement to pro rata long service leave - application dismissed

REASONS FOR DECISION

[1] On 4 April 2006, Bernadette Maree Dewhurst-Phillips (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Devonfield Enterprises, North-West Day Support Service (the respondent) arising out of an alleged entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid.

[2] The matter was listed for hearing on 20 April 2006 (Conciliation Conference) and 25 May 2006 at The Court House, 19 King Edward Street, Ulverstone, Tasmania.

[3] The applicant was employed by the respondent from 18 April 1995 until her resignation on 22 March 2006 as a Disability Support Worker.

[4] In October 2004 the applicant suffered injury from an attack on her by a person in her care. She underwent a rehabilitation programme over an extended period of time to manage symptoms of post-traumatic stress. Her rehabilitation involved her relocating to the respondent's Devonport facility for some time. The applicant maintained her salary and seniority, although the role was subordinate to her team leader role in Ulverstone.

[5] The respondent challenged the severity of the assault alluded to by the applicant.

[6] It was alleged by the applicant and disputed by the respondent that a second assault took place in October 2005.

[7] Through the entire period of recovery from the assault of October 2004 the applicant asserted she had been pressured persistently by her husband to leave Devonfield and find a new job.

[8] Mr G Dewhurst-Phillips, for the applicant, reasoned the adverse psychological condition of the applicant, as a result of the original assault, was having a significant impact on their relationship and the inter-relationships of the whole family. He freely acknowledged the constant pressure he put the applicant under to resign her position during this period.

[9] It was asserted that after the alleged second assault, the applicant finally sought alternative employment to remover herself from a perceived threatening environment.

[10] The applicant claimed an entitlement to pro rata Long Service Leave under s8(3)(c) of the Long Service Leave Act 1976 which states:

"... 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; ..."

[11] Mr S Cornish, from the Tasmanian Chamber of Commerce and Industry Limited, for the respondent, asserted the applicant resigned her position to obtain a higher paying job and as such was not entitled to pro rata long service leave.

EVIDENCE

[12] Sworn evidence was taken from the following witnesses:

· Bernadette Maree Dewhurst-Phillips

BACKGROUND

[13] That an assault took place on the applicant on 19 October 2004 is not disputed. The applicant, on advice from her husband, kept a very detailed diary of events post the assault (Exhibit A1). The diary commenced on 19 October 2004 and detailed the applicant's feelings, her emotional state and activities she undertook. It concluded on 12 November 2004, after she had attended an appointment with Dr Pava. She also created a very detailed report of the said assault (Exhibit A2). Letters from Dr M Jacobs (Exhibit A3) and Dr J de Jong (Exhibit A4) refer to the applicant as having suffered post-traumatic stress.

[14] However, there was no opportunity for the writers to be cross-examined on the content of their letters. Neither letter gives a contemporaneous assessment of the applicant's condition at her time of resignation.

[15] The respondent acknowledged the first assault and the ensuing rehabilitation. It however challenged the severity of the assault as portrayed by the applicant.

[16] Mr Cornish asserted the applicant had been trained to deal with such incidents. He also asserted that in October 2002 the applicant had participated in a "professional assault response training course" which was the same course undertaken by prison officers and psychiatric nurses. There were also other courses attended by the applicant appropriate to her function with the respondent. The applicant agreed.

[17] In his address to the Commission, Mr Dewhurst-Phillips asserted he had put continual pressure on the applicant to leave her current position and seek alternative employment since the assault of October 2004. Against his wishes, the applicant however, had persisted in maintaining her employment with the respondent.

[18] Mr Dewhurst-Phillips asserted the alleged second assault in October 2005 was the catalyst for the applicant to seek alternative employment.

[19] Unlike the assault of October 2004, the applicant could not produce any formal documentation, nor any personal diary notes or any witnesses to verify her assertion that an assault took place in October 2005.

[20] The respondent did not accept an assault had taken place at that time.

[21] Mr Cornish, at PN671 of transcript, responded:

"The applicant's further incident which she says took place in October 2005 which she claimed brought back the trauma of the October 2004 incident, but I submit it is extraordinary given the volume and the nature of the documentation of the previous incident, there is simply no record of the 2005 one. There is no workers' compensation claim, there is no incident report, there is no magnum opus, there is no listing of notes and what have you from the applicant, there is nothing. There is simply nothing on file. Nothing at all."

[22] The applicant applied for a position with the State Public Service in late October 2005. She was notified of her success in early March 2006. She ceased working with the respondent on 22 March 2006.

[23] Throughout the hearing the applicant insisted her medical condition was worsened by: a fear of further assaults; the challenge to her workers compensation claim for the October 2004 assault; inappropriate rehabilitation management; and, being exposed to the client, "Ms S" on occasions. The inference being that, deterioration in the applicant's condition manifested itself into more relationship issues within the family.

[24] The respondent put it to the Commission, that the assault in October 2004 was not serious and the main hurt to the applicant was that she had shown, in public, not to be able to handle the situation. Mr Cornish cited comments by Dr Sale regarding his opinion of the applicant's over reaction. However these comments were unsubstantiated.

[25] Mr Cornish commented on the perceived anomaly of the applicant being "disturbed" when she went to Ulverstone because she was intimidated by crowds, but that soon after the events of October 2004 she undertook an overseas trip. Travelling through major international airports and visiting London.

[26] Mr Cornish stated that the applicant had left her position with the respondent for a better paying job. He rejected the applicant's claim that she resigned as a result of deterioration in her medical condition through exposure to potential assault which, she claimed, put pressure on her home life and was exacerbated by her husband's behaviour in insisting she changed jobs.

[27] The applicant argued there were numerous jobs she could have applied for and that the salary was not the driving factor. Mr Dewhurst-Phillips demonstrated by way of the family budget that the increased income was not a factor in the decision. Mr Cornish rejected this argument as hearsay.

[28] Mr Cornish argued that a delay of seventeen months from the assault in October 2004 and also delay of five months from the alleged assault in October 2005, which was said to be the trigger for the applicant's resignation, "flies in the face" of any argument of "pressing domestic necessity". He further put it that the respondent was not aware of any pressing need.

[29] Both the applicant and the respondent relied on the "tests" applied in the Industrial Commission of New South Wales authority, Computer Sciences of Aust. Pty Ltd v Leslie [1983] ALR 823.

FINDINGS

[30] Section 8 of the Long Service leave Act 1976 is clear on the situations which must pertain for an employee to be eligible for long service leave, and in particular at s8(3)(c ) when that employee resigns their position of their own volition.

[31] The applicant put an argument to the Commission, that her medical state, due to two work-related assaults, caused relationship problems with her husband and within the family. She further argued that she was driven to resign by her husband's persistent push to have her obtain work elsewhere and that as a consequence of the second assault further deteriorating her condition, she sought a new position.

[32] Although there was no contemporaneous evidence give as to the applicant's state of health on her resignation, there was sufficient indication from the letters supplied by Dr Jacobs and Dr de Jong, as well as the details of the initial rehabilitation program, to reasonably educe the applicant had suffered a degree of post-traumatic stress for an extensive period. Without contemporaneous medical assessment the severity of the condition is not discernable. I note Dr de Jong's comment in Exhibit A4 dated 3 May 2006:

"I cannot offer any current opinion without having the opportunity to review you again"

[33] The applicant said the trigger that caused her to look for another job was the assault on her in October of 2005. She further claimed: that the incident was reported; that she was put on workers compensation; that she was moved into a less vulnerable position at work; and, that named persons were privy to the whole process. However, unlike the first acknowledged assault no supporting evidence was tendered. There was no incident report, no medical certification, no workers compensation data and no witnesses called to give evidence on her behalf. References to the second assault in the letters from the two doctors, is hearsay.

[34] I consider the efflux of this second incident, compared to the first assault, where the respondent followed what could only be described as an open and comprehensive investigation into the incident, then an acknowledged rehabilitation management process, inclusive of adequate documentation. In the case of the alleged second assault, the respondent has not acknowledged that it occurred. I find it an unlikely scenario that had the alleged second assault taken place, as described by the applicant, the respondent would not have reacted as they did with the incident of October 2004.

[35] Consistently throughout this matter the applicant referred to the second incident as an assault. She described it thus, at PN364 of transcript:

"... And a client had come into the kitchen from the opposite side, in an agitated state, and at that time he brought down with the full force of his arm and hand - a grown man, an empty cup on to the top of my head."

[36] However, the applicant, in her letter of resignation (Exhibit A8) described the incident:

"In October 2005, after the accidental injury to myself involving a client ..."

[37] The letter of resignation was written after almost five months of expectation of a new job. One can reasonably assume it was not written under duress, but reflected the applicant's feelings at the time. Both Mr Dewhurst-Phillips and the applicant made much of the respondent not having any record or paperwork pertaining to the "event" available at the hearing.

[38] It appears to me the applicant has taken considerable license with the facts surrounding the "event" of October 2005. It should therefore be a surprise to no one that the applicant cannot in any way substantiate her claim of assault in October 2005.

[39] I now turn to the requirements of the Long Service Leave Act 1976, where it states:

"... 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; ..."

[40] In the plain reading of this extract I take "domestic" to be a specific "necessity" and as such is governed by the adjective "pressing". However, by its nature a "necessity" implies a degree of immediacy or pressure.

[41] The applicant asserted she terminated her employment as a result of domestic necessity by dint of her husband's relentless insistence that she find a new job and, he did this as a result of the impact the applicant's state of mental health was having on the family relationships.

[42] I rely on the authority of the Full Bench of the Commission in Patricia Monsour trading as Lochnagar Services and Jacqueline Oliver, T11081 of 2003 dated 13 January 2004. At paragraph 12 of that decision the full bench directs:

"We agree with the submission of the appellant that there is no discretion available to a Commission member when applying the provisions of the LSL Act and that the Commissioner was required to make a determination in accord with the requirements of the Act and not on any other basis. We disagree with the respondent that the length of service was the relevant criteria to be satisfied in this particular case. There is a requirement for both criteria to be addressed and satisfied; the need to demonstrate a "pressing necessity" is fundamental to any pro-rata entitlement."

[43] And further at paragraph 30, the Full Bench again directs:

"We agree that in this matter the only time that is relevant for the determination of an entitlement to pro-rata long service leave is at the time of resignation and the circumstances prevailing at that time."

[44] I now turn to the "tests" as laid out in Computer Sciences of Aust. Pty Ltd v Leslie [1983] ALR 823 for a comparable situation:

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

[45] The reason given by the applicant to support her claim of "domestic necessity" falls within the section. The counter argument that the applicant's motivation in resigning was that she sought a higher-paying position, does not. However the argument put by the respondent, other then the fact that the new position was for higher pay, is conjecture. No evidence was educed to support the assertion that a higher-paying position was the motivation for the applicant's resignation.

2) - Was the reason genuinely held by the worker and not simply colourable or a rationalization?

[46] I can accept the pressure the applicant was under from her husband to find a new position. I also accept she resisted this pressure for some twelve months. Mr Dewhurst-Phillips stated at PN633 of transcript:

"Up to the time of the incident in October 2005, there was no suggestion of any attempt to terminate employment."

[47] However, there is no evidence to support her claim that the trigger for her resignation, the assault on her in October 2005 actually took place. Indeed, under cross-examination by Mr Cornish, at PN509 of transcript, she responded:

"What you are saying, you were happy to stay at Devonfield until you were offered another job?---Yes."

[48] And further at PN 513 of transcript:

"... Had you not received that job offer you would not have resigned?---I can't say."

[49] Assuming the assault of October 2005 did take place, her resignation was some five months later. No evidence was tendered as to the applicant's state of mind during that time, or the prevailing relationship situation with the family.

[50] Again, I turn to the letter of resignation (Exhibit A8) where the applicant, in justifying her resignation, said:

"I asked my treating GP at the end of last year, should I attempt to rehabilitate myself into supervisory contact with the client, and his advice was that I should not ..."

[51] However in October, prior to the advice from her treating GP, she had already applied for at least one other job.

[52] I find that the applicant's action in resigning when she did was a rationalization of circumstances prevalent at the time.

3) - Although the reason claimed may not be the sole ground which actuated the worker in his decision to terminate, was it the real or motivating reason for it?

[53] The evidence indicates that the motivation to resign at the time the applicant did was the opportunity that she had an offer of a job. There is no evidence that the work environment, the home situation or her state of mind had changed in any way during the five months from the alleged second assault to prompt resignation.

4) - Was the reason such that the reasonable personal circumstances in which the worker found himself placed might have felt compelled to terminate his employment?

[54] If I am to believe the applicant that she was fearful of further assaults, which could exacerbate her poor mental state and further impacted on her family relationships, then I ask the question "Why did she not resign immediately after the alleged second assault?" To continue to expose oneself to a situation from which one has already decided to extricate oneself for a further five months dampens down the concept of "pressing domestic necessity".

[55] When evaluating the sequence of events, it is my view the applicant would have to have resigned at the juncture when the alleged second assault took place to satisfy any sense of a pressing need or compulsion.

[56] The applicant had tolerated her husband's admitted pressure to resign her position for twelve months. There is no evidence that the alleged second assault, which motivated her to apply for the other job, ever happened. Had the assault been proven to have occurred, the delay of five months before resigning dispels any sense of compulsion, urgency or pressure. There is no contemporaneous evaluation of the applicant's mental state or the family relationship situation at the time of her resignation.

[57] In my view, the applicant's acceptance of the offer of a new job was the primary motivating factor in her resignation. The reason for the applicant's resignation does not satisfy s8(3)(c ) of the Long Service Leave Act 1976, and I so find.

[58] The application is dismissed.

James P McAlpine
COMMISSIONER

Appearances:
Mr G Dewhurst-Phillips for Bernadette Maree Dewhurst-Phillips
Mr S Cornish, Tasmanian Chamber of Commerce and Industry Limited, with Mr S Daly for Devonfield Enterprises, North-West Day Support Service

Date and Place of Hearing:
2006
April 20
May 25
Ulverstone