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Tasmanian Industrial Commission
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Long Service Leave Act 1976
s14 appeal against decision

Netcraft Pty Ltd
(T10267 of 2001)


Department of Infrastructure, Energy and Resources



HOBART, 11 October 2002

Appeal against a decision handed down by Commissioner Imlach arising out of T9769 of 2001 - Appeal dismissed - decision confirmed


[1] In a decision handed down on 15 February, 2002, a Full Bench of the Commission dismissed an appeal by Netcraft Pty Ltd (the company) against a decision of Commissioner Imlach in Matter T9769 of 2001.

[2] The Bench dismissed the appeal being of the view that there was no application before it capable of determination. The appellant had filed the application pursuant to s.70(1) of the Industrial Relations Act 1984 whereas it was more properly a reference pursuant to s.5(1)(a) the Long Service Leave Act 1976.

[3] A further difficulty identified by the Bench was that the Commissioner had issued his order pursuant to the Industrial Relations Act 1984, rather than the Long Service Leave Act 1976 and as such, in the view of the Bench, the order was unenforceable.

[4] The Bench noted that even had the appeal been correctly lodged it was arguable that it would have been successful.

[5] Commissioner Imlach listed the matter for further hearing on 13 June, 2002, following a request from the Secretary, Department of Infrastructure, Energy and Resources (the Secretary) to consider whether the order issued by the Commissioner could be corrected.

[6] In a "further decision" issued 18 June, 2002, the Commissioner corrected the order. This was not opposed by the company, represented by the Tasmanian Chamber of Commerce and Industry (TCCI).

[7] It is this "further decision" which the company now seeks to appeal.

[8] An earlier matter involving the company and Ms Cox was heard and determined by Commisioner Abey, that matter was an application by Ms Cox alleging that her termination by the company had been unfair. Commissioner Abey found that although the company had a valid reason for termination there was a "significant element of procedural unfairness". Reinstatement was not a consideration and he awarded compensation of $2,800.00.

[9] Significantly, Commissioner Abey found, albeit with some reservations, that the termination of Ms Cox was not for reasons of "wilful misconduct".

[10] In the matter before Commissioner Imlach, which was a reference seeking an entitlement for payment of long service leave, the parties relied, by agreement, on the transcript of the proceedings before Commissioner Abey, and it was conceded that the termination was not found by the Commissioner to be for "wilful misconduct" and as such did not exclude Ms Cox from an entitlement to long service leave.

[11] The company did not appeal the decision of Commissioner Abey, accordingly that decision stands and it is now irrelevant that the company disagrees with the findings therein.

[12] The applicant was not present at the proceedings before Commissioner Imlach and it is noted that the claim is being pursued by the Secretary, not the applicant.

[13] The reference before Commissioner Imlach was a straight forward matter which required a consideration of entitlements provided in the Long Service Leave Act 1976. As the parties had relied on the transcript of proceedings before Commissioner Abey and his decision had not been appealed there was little else Commissioner Imlach was able to do but apply Commissioner Abey's decision to the provisions of the Long Service Leave Act 1976.

[14] The grounds of appeal relied on by the company are as follows:

Ground 1:

The Commissioner erred by failing to give sufficient weight to the respondent's submissions.

[15] This ground related to matters which had arisen after the initial hearing and which were not put to Commissioner Abey in the matter before him. As such they were not issues relied upon for the termination of the employment of Ms Cox.

[16] The company referred to an e-mail received by the TCCI on 23 January, 2002, which referred to charges against Ms Cox which related to allegations of her stealing from the company.

[17] That e-mail said:

"Cox was summoned on 18/5/01 to appear on criminal charges on 19/7/01. She failed to appear. There was a second date then set 23/10/01 with a warrant for her arrest approved if she failed to appear then also. She failed to appear on 23/10/01 so a warrant for her arrest was issued...."

[18] Before Commissioner Abey the company argued that it was Ms Cox's behaviour at work which caused the termination not the allegations of theft.

Ground 2:

[19] The Commissioner erred by not allowing the respondent's request that the applicant attend the hearing to be cross-examined on her evidence.

[20] Commissioner Imlach refused the company request that Ms Cox attend the proceedings to be cross-examined on her evidence, presumably in relation to her long service claim.

[21] The Commissioner said in his decision "I decline to adjourn the matter and call Ms Cox to answer questions in relation to the theft allegations as they were raised after the termination of her employment and were not grounds for that decision."

Ground 3:

[22] The Commissioner erred by not giving sufficient weight to the respondents further written submissons nor was there any mention of these submissions made in the decision.

[23] Commisioner Imlach addressed the request by the company in his decision stating that the issue about which the company had provided written submissions was not related to the reasons for termination as determined by Commissioner Abey. Further the proposed questions to be put to Ms Cox were matters of fact and as such were possibly not in dispute and so did not require her attendance.

[24] This appeal raises no issues not already dealt with in the earlier application.

[25] Accordingly whilst the decision of Commissioner Abey stands the reference under the Long Service Act 1976 relies upon his finding that Ms Cox's employment was not terminated for "wilful misconduct" related to the matters now raised by the company. Her termination was for reason of her behaviour at the company work site.

[26] The appeal is dismissed.


P L Leary

Mr J O'Neill from the Tasmanian Chamber of Commerce and Industry Limited for Netcraft Pty Ltd.
Mr G Williams from Department of Infrastructure, Energy and Resources.

Date and place of hearing:
September 4