T13222
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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Mark Vivian Harris
and
Coventry Group Ltd trading as Coventry Fasteners
Industrial dispute - long service leave – application dismissed
REASONS FOR DECISION
[1] On 25 September 2008, Mark Vivian Harris (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 Coventry Fasteners (the respondent) arising out of a dispute over the 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 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 14 October 2008 (Conciliation Conference) and 19 November 2008. [3] The applicant was employed at Coventry Fasteners from 19 October 1998 until his resignation on 15 August 2008. [4] The applicant asserted that he resigned from his position with the respondent as a result of workplace stress which was affecting the stability of his marriage. He sought payment of pro-rata long service leave in accordance with Clause 8A3(c) of the Long Service Leave Act 1976 (LSL Act).
BACKGROUND [5] In correspondence dated 3 November 2008 the respondent informed the Commission that it would be relying on 11 documents, copies of which had been supplied to the applicant, as follows: 1. Letter for submission of written evidence and list of witnesses; 2. Letter from applicant to Ms Graham dated 26th August 2008; 3. Letter from respondent to applicant dated 29th August 2008; 4. Letter from respondent to applicant dated 10th September 2008; 5. Letter from respondent to Commission dated 30th September 2008; 6. Termination Form and attachments; 7. Computer print out of Employee payslip; 8. Letter from respondent to Mr R Jacobson dated 22 August 2008; 9. Email dated 27 February 2008 and attachments; 10. Computer print out of Leave Bookings Display; and 11. Email dated 8 July 2008. [6] In correspondence dated 7 November 2008 the applicant informed the Commission that he would be relying on three documents, copies of which had been supplied to the respondent, as follows: · Notice of resignation dated 7th August 2008; · Letter from the applicant to Ms Graham dated 26th August 2008; and · Letter from the applicant to Ms Graham dated 10th September 2008. [7] The applicant asserted that “over the past six months or so” he was having “problems” at home. He put the situation down to stress which was caused by issues at the workplace. He asserted that his stress was a result of “various changes within the company”, “downsizing in personnel”, dealing with irate customers and his reluctance to confide in management “because they’ve only been there a very short while...” [8] Mrs Harris asserted in her statement (Exhibit A2) that due to the “already reduced staff levels” the applicant could not attain the “high level of satisfaction” he sought from his employment. [9] In his letter to Ms Graham of 26 August 2008, the applicant stated:
“In my resignation letter, dated 7th August 2008, I stated that my decision to resign was based on organisational changes, specifically a reduction in staffing …” [10] The applicant asserted the respondent attempted to alleviate the shortage of personnel by engaging contract labour. He further asserted this exacerbated his stress levels because it appeared to him that he “… was the only one capable of training this guy …”. (Transcript p.3, L.28) He alleged that on two occasions the people he was training had only lasted a day at work and left. [11] Mrs Harris, in her statement, relayed that the applicant was responsible for training a prospective new employee, which stressed him. [12] Ms Graham, for the respondent, asserted that at no time during the applicant’s tenure with the respondent was the Hobart facility downsized or subjected to restructuring. She conceded that in the June and July before the applicant’s resignation the facility had one resignation and one termination. She further asserted that the replacement employees indeed came from a labour-hire company and were engaged as permanent employees in July and August respectively. [13] After Mr Waldron, for the respondent, had rejected the premise that there had been a reduction in the number of personnel, Mr Whittle, for the applicant, asserted:
“… we don’t challenge that. The issue … that caused the stressful marker is not a reduction of staff levels, it’s actually a change in workload. (Transcript p.27, L.8) [14] The applicant asserted he had not received pay advices at the time of his resignation. Copies were later sent to him by Ms Graham. [15] Ms Graham asserted that from May 2008 pay advices were generated electronically and available to employees on the company’s “Web Kiosk”, a fact of which the applicant would have been aware. [16] The applicant claimed that he could see no other course than to resign to relieve the stress. [17] Mrs Harris asserted in her statement that after 21 years of happy marriage, for the last “12 months or more” the relationship had been damaged through the applicant’s behaviour, allegedly associated with his stress at work. [18] Mr Whittle asserted that Mrs Harris had stated to the applicant, that the only way to save their marriage was for him to resign from his employment with the respondent. [19] Ms Graham asserted that the respondent was not made aware of the extent of the applicant’s alleged stress and anxiety. Nor, it seems, was the respondent aware that the applicant had been given the ultimatum by his wife to resign from his job. Further she asserted that at no time was the respondent made aware of the alleged necessity for the applicant to resign as a consequence of domestic matters. [20] In February 2007 the applicant spoke to Mr J Lynch, Manager for the respondent, regarding the pressure and stress he was under and that he was considering resigning. From his statement (Exhibit A1) it appears Mr Lynch suggested the applicant take some leave and consider his position. The applicant returned from leave and no more was said to Mr Lynch about the applicant’s alleged stress. Although, he further stated in his statement, he thought things “seemed to have settled.” Mr Lynch stated he considered at the time the applicant was still feeling stressed. [21] Mr Lynch made the point that a new computer system had been installed which changed the way the respondent did business and altered the employees’ roles. He also stated that this affected all staff, not specifically the applicant. He allegedly witnessed declining staff morale and poor management communications; this is however hearsay. [22] Mr Whittle asserted that because Mr Lynch had suggested the applicant take leave this was an acknowledgement he was suffering from stress. He asserted Mr Lynch admitted the applicant “was still feeling stressed”, but nothing was done. [23] The applicant asserted he was told to take leave which made him feel management was saying he had to deal with the causes of stress himself.
“He had already tried with the manager he had trusted for six years and nothing was done.” (Transcript p.12, L.40) [24] Mr Lynch left the respondent’s employ in September 2007, some seven months after the alleged conversation, on good terms. [25] In her statement to the Commission (Exhibit A2) Mrs Harris asserted that the applicant was confident he could deal with the stress in his own way. She sought advice from her pharmacist as to medication which could relieve the applicant’s symptoms of stress. She asserted the applicant had difficulty in complying with a respondent’s company policy which set $5 as a minimum purchase, causing him stress. [26] The Commission sought to find out why the respondent’s alleged practice of overcharging should cause the applicant stress. The applicant asserted he felt it was an unfair practice. [27] Mr Whittle asserted the applicant raised the issues of excessive pricing and low staff levels with Mr Waldron on or about 5 June 2008. He asserted the applicant was not given a response. He asserted Mr Waldron had stated that a branch of the company in Victoria had been closed down because it was not performing; the applicant took this as a threat. [28] Mr Whittle alleged that “several weeks later” the applicant had a similar conversation with Mr Waldron at which time he was told, it was alleged, to “hang in there”. He argued that the applicant felt this comment confirmed that the respondent wanted him to deal with the problem of stress himself. [29] Mr Waldron, in his evidence, asserted he had met with the applicant on 4 June 2008. He stated that he did not make a record of the meeting because it was not a counselling session and “I always found Mark Harris … to be very diligent …”. (Transcript p.23, L.24) He claimed, he and the applicant discussed a range of operational issues but did not recall “… Mark talking about stress at work or anywhere else in his life”. (Transcript p.23, L.30) He further asserted that, apart from the aforementioned discussion, he had had only brief conversations with the applicant. He made comment that “I found Mark to be a very good employee”. (Transcript p.23, L.32) [30] Mr Whittle alleged that the respondent made no attempt to clarify the reasons for the applicant’s resignation, despite the letter of resignation stating he was leaving through “workplace stress”. [31] In his letter to Ms Graham of 26 August 2008, the applicant alleged “I received no request for an explanation for my resignation.” [32] Ms Graham asserted she had offered to discuss the matter of his resignation with the applicant, but the offer was declined. This statement was not challenged. [33] Mr Whittle alleged the respondent did not follow its own procedures by failing to conduct an exit interview with the applicant. [34] Ms Graham explained that exit interviews were conducted on line and it was entirely the choice of the person leaving the company to participate or not. [35] Mr Whittle asserted that the applicant’s letter of resignation stated “I’m resigning due to stress”. (Transcript p.29, L.7) The applicant’s letter of resignation, contained in the applicant’s correspondence dated 7 November 2008 at dot point 1, actually stated:
“I have found it difficult to perform my duties to my personal satisfaction causing stress and anxiousness under the present system …” [36] Mr Green, the applicant’s most recent direct Manager, asserted that when he was given the applicant’s resignation he asked “… was there anything that I could do, and he (the applicant) said that there wasn’t”. (Transcript p.25, L.40) He further asserted that “at no time” did the applicant mention to him that he was stressed or was having relationship problems. (Transcript p.25, L.44) [37] In his evidence Mr Green asserted that at the time he resigned, the applicant had mentioned that his wife had initially not agreed with him resigning but later changed her mind. [38] Mr Whittle rejected this statement as being untrue. [39] Mr Green confirmed the applicant was “… very thorough and you probably wouldn’t get anyone that would do the job better ...” (Transcript p.26, L.4) [40] Mr Green stated that he had not been given any medical certification from the applicant with respect to his alleged stress. Although Ms Graham asserted that in a conversation with Mrs Harris, she, Mrs Harris, alleged that medical certificates as to the applicant’s stressed condition could be obtained. No medical certification was adduced. [41] Mr Whittle further asserted that the applicant did not have another job to go to before he resigned. The applicant, it was alleged, made contact with another employer on the day he resigned and was immediately offered a job. [42] It was asserted by the respondent that the applicant sought not to honour the four-week notice period in his contract of employment. Ms Graham alleged this was because the applicant had accepted a job elsewhere. Mr Green, in his evidence, asserted that he was aware the applicant had found another job and said that it was “… common knowledge in the industry”. (Transcript p.26, L.8) [43] The applicant argued that the reason he only gave one weeks’ notice was as a result of a discussion with Workplace Standards Tasmania who, allegedly, informed him that he was only obliged to give one week’s notice. However, during the summing up the applicant asserted: “The reason why I wanted to get out was because I couldn’t stay there for another four weeks.” (Transcript p.28, L.23) He did, however, agree that his contract of employment did stipulate a four-week notice period. [44] It should be noted that the respondent acceded to the applicant’s request to only work one week’s notice. [45] The applicant became somewhat confused in that he felt he should have been paid out the three weeks he did not work. After consultation with his support person, he withdrew the claim. [46] In a letter dated 29 August 2008 (Exhibit A4) Ms Graham stated that to pay the applicant long service leave to which he was not entitled would be “unlawful”. She also stated that during the applicant’s employment there were no discussions entered into regarding the applicant’s domestic situation, health or other pressing matters. [47] Mr Whittle rejected this statement and asserted the letter from Mr Lynch proved such discussions did take place. [48] Ms Graham also asserted there were no files, records or correspondence relating to the issues raised by the applicant, nor any evidence that he had to resign due to pressing family reasons. [49] Mr Whittle alleged that Mr Lynch had said that his notes on the conversations with the applicant had been deleted from the computer system and were no longer available. [50] Mr Whittle alleged that Ms Graham had given the applicant unsolicited copies of confidential files, letters and documentation regarding a former employee. The employee, in a similar situation to the applicant, had received pro-rata long service leave which was later found to be an error. The Commission sought an explanation of the relevance of this disclosure to the instant matter; Mr Whittle responded that he wanted to illustrate the effectiveness of the respondent’s document control. Further, he asserted “this might explain why Coventry Fasteners stated they are unable to find any record of conversations between management and Mark Harris.” [51] It should be noted that no evidence of the alleged “private” documentation was adduced by Mr Whittle. [52] Mr Whittle put the proposition that had the notes of the applicant’s meeting with Mr Lynch in February 2007 been available, the respondent would have been aware that the applicant was seriously considering resigning. He stated that:
“Mark was very disillusioned, he felt that it was fruitless to continue to raise this.” (Transcript p.29, L.35) [53] Ms Graham argued that the letter from Mr Lynch was hearsay on the basis that neither party had documented the conversation. She noted that at the time of the conversation the applicant had requested four weeks’ annual leave. She also noted that the applicant had worked for “at least” another twelve months for the respondent after the discussion.
FINDINGS [54] There is a facility in the LSL Act for employees who have more than seven years’ service, but less than the required fifteen years, to access pro-rata long service leave on resignation. Specifically to the instant matter, Clause 8(3)(c) may apply. This subclause states that pro-rata long service leave may be granted as a result of:
“(c) an employee who terminates his employment on account of … domestic or other pressing necessity of such a nature as to justify the termination of that employment;” [55] The subclause is not particularly prescriptive but relies on a commonsense reading of “domestic” and “pressing necessity”. In my view it implies a mutuality of position between the employee and employer. And further, that both parties have input into the final decision to terminate the employment in as much as the employer is forewarned of an impending resignation for verifiable “domestic” or “other pressing reasons”. [56] It was alleged that the applicant had developed work-related stress and anxiety affecting him such that his behaviour had caused an almost irretrievable breakdown in his marriage. We have been told the only resolution to his domestic situation was for him to resign his employment. It would appear that such a situation may satisfy the requirements of Clause 8(3)(c), however, there is significant inconsistency in the applicant’s case which must be scrutinised. [57] I turn initially to the alleged causes of the applicant’s stress. [58] The applicant, in his statements to the Commission, alleged a reduction in staffing caused his workload to increase to such an extent that he felt he could not cope, he repeated this reasoning in his letter to Ms Graham of 26 August 2008: “… specifically a reduction in staffing …”. [59] This cause was reiterated by Mrs Harris in her written statement: “… with already reduced staff levels …” and further stressed by Mr Whittle throughout his carriage of the applicant’s case. This position was advanced consistently throughout the hearing until Mr Waldron categorically stated that during the applicant’s tenure there was not a reduction in staffing levels. Immediately Mr Whittle capitulated: “… we don’t challenge that. The issue that … caused the stressful marker is not a reduction of staff levels, it’s actually a change in workload.” (Transcript p.27, L.8) [60] In my estimation this blatant contradiction must put into question the credibility of the applicant’s position. [61] A further contributor to his stress and anxiety, the applicant claimed, was the introduction of a new computing system which allegedly increased his workload. He did not elaborate on how his workload had increased. [62] It was acknowledged by the respondent that a new computing system had been introduced throughout the company. [63] It was also alleged by the applicant that Mr Waldron had said to him that other branches were coping and so should Hobart. [64] Mr Lynch, in his letter (Exhibit A1), asserted that the new computer system had caused stress across all the staff, not specifically the applicant. The applicant gave an example of alleged over charging as a result of the new system as causing him stress. He did not give any indication if this “over charging” was a regular occurrence or only occasionally. The pricing policy for any company, in my view, is a matter for the company officers. [65] The applicant claimed that he had been having trouble at home over the “past six months or so.” (Transcript p.3, L.1) [66] Mrs Harris asserted that the issue had been going on for “… 6 – 12 months or more.” (Exhibit A2) [67] Mr Lynch asserted the matter of the applicant being stressed was raised with him, in conversation, in February of 2007, some eighteen months before the applicant resigned, albeit the domestic situation was not disclosed to him. [68] From evidence, and given the contradictions, there is no means of ascertaining with any confidence when the alleged “pressing necessity” arose. [69] The respondent, through Ms Graham, Mr Waldron and Mr Green, asserted they were not aware of the applicant’s alleged state of stress, or indeed his domestic situation. There was no evidence of illness either by way of medical certificates or regular absences from work. Mr Waldron asserted he did not recall discussing the applicant’s level of stress with him at the meeting in June 2008. There was no evidence of an alleged second meeting between the pair “some weeks later”. [70] I have no reason to doubt the evidence given by the respondent’s representatives. It can be concluded from the applicant’s evidence that he did not pursue the matter with Mr Lynch subsequent to his meeting with him in February 2007 and prior to Mr Lynch’s own resignation in October 2007, some nine months later. [71] The applicant’s statement was that he was reluctant to confide in the new Manager, Mr Green, because he had “… already tried with the manager he had trusted for six years and nothing was done.” (Transcript p.12, L.40). And further, “Mark was very disillusioned, he felt that it was fruitless to continue to raise this.”(Transcript p.29, L.35). I find this position to be somewhat immature given allegedly, the workplace stress was affecting his everyday life. [72] Mr Whittle argued that the conversation with Mr Lynch and Mr Lynch’s subsequent suggestion that the applicant take leave was an acknowledgement he was suffering from stress. I am at a loss to comprehend how Mr Whittle came to that conclusion. There was no evidence to suggest that Mr Lynch is qualified in any way to make such a diagnosis. Indeed, it is most likely that why don’t you “take some leave” would be the reaction of the majority of lay people when confronted by someone alleging they were stressed. [73] The applicant asserted that the respondent was ambivalent to his resignation in that no one appeared to be interested in his reasons for resigning. There was no evidence that the applicant’s work performance had deteriorated in any way from his alleged stressed condition. Indeed, from evidence the applicant was a valued diligent employee. Again from evidence it appears he would be difficult to replace. [74] One must pose the question: why would an employer lose the services of such a competent employee without attempting to address his issues? Both Ms Graham and Mr Green asserted they had sought to discuss the matter with the applicant, but to no avail. These assertions were not refuted. The respondent was accused of failing to follow its own procedures by not conducting an exit interview. Ms Graham informed the Commission that exit interviews were done on line and solely at the initiation of the person resigning. This was not challenged. [75] It would appear the applicant did not avail himself of the opportunity of an exit interview. [76] Given the applicant’s value to the respondent, I am inclined to accept the assertions of Ms Graham and Mr Green that their attempts to discuss the matter with the applicant were rejected. In my view there were a number of factors at play here. [77] I turn to the applicant’s letter of resignation where he stated:
“I have found it difficult to perform my duties to my personal satisfaction causing stress and anxiousness under the present system …” [78] It clearly does not give the complete story of the alleged ongoing stress and domestic disharmony. Indeed, on first reading the letter infers that the applicant is dissatisfied with his own performance, albeit within the “present system”. The result of this lack of specificity is compounded by the contention that the respondent’s representatives both in Hobart and in Melbourne were unaware of the applicant’s alleged issues. [79] Added to this is the situation where, according to Mr Green, it was “common knowledge in the industry” that the applicant had found himself another job. The applicant vehemently denied this and asserted he had called another company on the day he resigned and was immediately offered a job. No evidence was educed to support the applicant’s contention. I find this particularly difficult to accept. From evidence, the applicant took the trouble, he alleged, to get an opinion from Workplace Standards Tasmania on the validity of his contracted four weeks’ notice period. [80] One can only assume the enquiry took place sometime prior to his resignation. But even here the applicant contradicted himself. Initially he asserted he only sought to comply with the award. Later, asserted he had to leave because “… I couldn’t stay there for another four weeks.” (Transcript p.28, L.23) Yet he had remained in the employ of the respondent for some eighteen months after raising his alleged stress issues with Mr Lynch. Coincidentally he started the new job a week later after the respondent agreed to waiver the four-week notice period. [81] For want of any substantiated evidence to the contrary, the only logical conclusion I can draw from his manipulation of the notice period is that the applicant was obliged to commence his new job a week after his resignation from the respondent. [82] Mr Whittle asserted that the applicant’s new job paid less than the one he had left which was proof he was compelled to leave the respondent’s employ by circumstances. Once again no evidence was educed to verify that his salary was less. Regardless, I see no logic in Mr Whittle’s conclusion at all.
SUMMARY [83] The applicant, after almost ten years’ working for the respondent, resigned. He made one attempt to discuss part of his issue with the then Manager some eighteen months before he resigned. He chose not to raise the matter with his new Manager. He chose not to reveal his domestic situation to his Manager. [84] The applicant provided no medical proof of his alleged stress. The Commission is not aware if the applicant sought any formal medical advice other than his wife’s conversation with a pharmacist. He provided no evidence of the situation surrounding his gaining new employment. There is no sworn evidence as to the applicant’s domestic situation. [85] There is a distinct lack of substantiated evidence in the applicant’s case. There is also a considerable amount of hearsay and opinion. Coupled with this situation the applicant’s case is fraught with contradiction. [86] Further I find it incongruous that the applicant’s alleged stressed condition and his adverse domestic situation only came to light to senior management after he had been refused pro-rata long service leave. [87] The applicant has not adequately demonstrated a “domestic or other pressing necessity of such a nature as to justify the termination of that employment”, and I so find. [88] The application is dismissed. I so order.
James P McAlpine
Appearances:
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