T11081
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Patricia Monsour and Jacqueline Oliver
Appeal against a decision handed down by Commissioner Abey arising out of T No. T10984 of 2003 - Appeal grounds 1(i),(ii),(iii), 2(i) and 3(i),(ii),(iii),(iv) upheld - Order revoked REASONS FOR DECISION [1] This is an appeal against a decision by Commissioner Abey in matter T10984 of 2003. In that matter the Commissioner determined that "Lochnagar Services, 26 Lyttleton Street, Launceston, Tasmania 7250, pay to Jacqueline Oliver, 16 Nile Road, Evandale, Tasmania 7212, an amount of three thousand eight hundred and twenty one dollars and seventy cents ($3821.70) such payment to be made not later than 5.00pm on 1 October 2003." [2] The order by the Commissioner followed his finding that Mrs Oliver "...has satisfied the onus of demonstrating that she has an entitlement to pro rata long service leave." [3] Mrs Oliver had been employed by the appellant from July 1992 until her resignation effective 16 May 2003. She worked 20 hours per week until January 2003 when her hours were increased to 32 per week. From June 2002, she also worked approximately 4 hours per week with a neighbouring medical practitioner. [4] Her personal circumstances changed due to a marriage breakdown and in March 2003 the matrimonial home was sold. In April 2003 Mrs Oliver purchased a new home which was funded by the proceeds of her property settlement together with a mortgage. She undertook some renovations to the new property. [5] In May 2003 Mrs Oliver was offered and accepted a full time position and resigned her employment with the appellant. [6] The Commissioner found that the "pressing necessity" which led to Mrs Oliver's resignation was one of financial stringency and met the requirements of the Long Service Leave Act 1976 (the LSL Act) which provides at s.8(3)(c) that:
[7] Pursuant to s.70(1)(b) of the Industrial Relations Act 1984 (the Act), Lochnagar Services has appealed the decision of the Commissioner. [8] The grounds of appeal are as follow:
2. The Commissioner acted on wrong principles in that:
3. The Commissioner erred in failing to give weight to relevant matters:
4. The Commissioner made a mistake as to the facts:
Appeal ground 1(i),(ii),(iii) and (iv) [9] The appellant submitted that the LSL Act does not allow the Commission in exercising its jurisdiction any discretion in determining a claim before it. The Act sets out strict criteria that "must be satisfied, not on the balance of probabilities but strictly satisfied," before an applicant has any entitlement to receive pro rata payment. The Act requires that:
[10] In this matter the applicant satisfied the requirement to have at least seven years continuing employment having been employed by the appellant for some 10.5 years. [11] The respondent submitted that the LSL Act was silent as to discretion but acknowledged that it did prescribe a criteria to be satisfied as to length of service, it was submitted that it was the length of service criteria which was relevant and in this matter had been satisfied. [12] 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. [13] It was submitted by the appellant that the Commissioner misinterpreted the meaning of "pressing necessity" and made assumptions which were not supported by the evidence and relied on matters or took into account matters not raised at the hearing without giving the appellant an opportunity to address those matters as required by s.20(4) of the IR Act. [14] The appellant relied on the tests adopted in the decision of the NSW Industrial Commission in Court Session in Computer Sciences of Australia Pty Ltd v Leslie [1983 AR 828] (Computer Sciences). Those tests are as follows:
[15] The appellant argued that the reason for Mrs Oliver terminating her employment was a lifestyle decision and not a "pressing necessity" as required by the LSL Act. It was argued that Mrs Oliver was financially "better off" with her new employer however her decision to accept the offer of new employment was an option she exercised rather than a "pressing necessity" as required by the LSL Act. [16] The appellant submitted that it is an option for anyone to pursue and accept a better paid position but to do so would be unlikely to satisfy the "pressing necessity" criteria of the LSL Act. [17] In the decision of the Commissioner there was much detailed discussion about Mrs Oliver's financial arrangements, obligations and commitments and we do not think it necessary to repeat that information here. [18] The Commissioner found that Mrs Oliver had always experienced financial difficulties and that this was known to the appellant, however the appellant argued that the decision to purchase the home and to make the renovations was entirely the choice of Mrs Oliver in the knowledge of the income she was receiving at the time of making the decision to purchase and renovate. At the time of taking out the loan she was employed by the appellant and was able to work some additional hours for another employer and was able to meet her commitments. [19] The respondent to the appeal submitted that there was no evidence that the Commissioner "stepped outside of the discretion necessary when hearing a dispute between an unrepresented applicant and a respondent utilising the services of an experienced industrial advocate." [20] Whilst we note that the grounds of appeal make no reference to an unrepresented litigant the issue has been raised by the respondent to the appeal and we respond as follows. The Commissioner, in our view, did everything that could be expected of him to ensure that the appellant had a fair opportunity to present her case. He was not required to ensure that the appellant took the best advantage of the opportunity presented. [21] In Sullivan v Department of Transport Deane J (178)[20 ALR 323] at 343 stated:
[22] The respondent claimed that there "...was a pressing necessity for Mrs Oliver to ensure that she was financially remunerated adequately to ensure that her housing needs were met by the sale of the marital home." [23] There was no evidence to suggest that Mrs Oliver had over-committed in respect to her financial obligations and that they were beyond her capacity to repay, any decision as to the seeking of a loan was made at the time of her employment with the appellant and was based on her financial circumstances at that time. [24] The appellant argued that the Commissioner had made a number of assumptions, the respondent agrees but considers that it was reasonable for him to do so and submitted that in some instances the comments by the Commissioner were no more than statements of fact. The appellant argued further that there was no evidence in respect to a number of matters on which the Commissioner made assumptions and that he was required to inform the parties that he intended to rely on matters not before him and to give the parties an opportunity to be heard in respect to those matters. [25] We agree that the Commissioner referred to a number of issues which were not the subject of any evidence before him, this he noted in his decision, however we are of the view that his reference was more commentary rather than a consideration in his decision making. [26] We do not agree that there was any requirement pursuant to s.20(4) of the Act as the Commissioner has done little more than make comment. [27] We uphold appeal ground 1(i),(ii),and (iii) but reject appeal ground (iv). Appeal ground 2(i) [28] The appellant submitted that the entitlement to pro-rata long service leave should have been considered by reference to the circumstances prevailing at the date of resignation. It was argued that the Commissioner had erred by taking into account the circumstances of Mrs Oliver some time prior to, and following, her resignation and that those circumstances were not relevant to her reason for resigning. [29] It was submitted by the appellant that Mrs Oliver committed to her financial arrangements whilst still employed by the appellant, she was aware of her income and her outgoings at that time. It was her choice to seek other employment which would provide her with increased earnings. [30] 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. The significant events surrounding the changes to Mrs Oliver's personal arrangements were prior to that date and the decisions made as to her financial arrangements were also made prior to her resignation. The financial planning she had implemented was in place before she resigned. The impetus for the resignation was the offer of a better paid job, with the prospect for further wage increases. We make no criticism of that choice but are of the view that the test of a "pressing necessity" as required by the LSL Act has not been satisfied. [31] The Commissioner in the hearing below was only required to consider the claim by the applicant at the time she tendered her resignation from the appellant. The evidence would suggest that at that time she was managing her financial commitments and there was no "pressing necessity" for her resignation. [32] We uphold appeal ground 2(i). Appeal ground 2(ii) [33] We have already addressed the grounds raised in our consideration of Appeal ground 1(ii),(iii) and (iv). We do not need to repeat our comments here. Appeal ground 3(i) [34] It was submitted by the appellant that the Commissioner failed to give weight to the final submission of the respondent which was evidence of the true reason for pursuing the claim. Mrs Oliver said:
[35] The respondent claims that the submission of Mrs Oliver was no more than her "simply defending herself against what she saw as a personal attack." Mrs Oliver was responding to the submissions of the appellant that the reason for her leaving was not a genuine reason but one adopted so as to enable access to a long service leave entitlement. We do not consider the submissions of the appellant as a "personal attack" but submissions quite properly put in response to the claim by Mrs Oliver. [36] Nevertheless we consider the response by Mrs Oliver as revealing of at least one reason for pursuing the claim. [37] We uphold appeal ground 3(i). Appeal ground 3(ii),(iii) and (iv) [38] It was submitted by the appellant that Mrs Oliver did not inform the appellant that she was resigning her employment due to any claimed "pressing necessity"; had not advised the appellant that she was experiencing financial difficulties due to her circumstances at that time nor did she seek a wage increase or request to work extra hours. When advising of her intention to leave she only asked what notice was to be provided. The reliance in this matter on her financial arrangements and related documentation is not relevant to a consideration of her entitlement under the LSL Act, some of that information is purely speculative and is therefore unreliable. Accordingly whatever was contained in the valuation report and the interpretation placed upon its content is not relevant, likewise whether the Commissioner placed any weight on the document or not is also irrelevant in our view. [39] Whether the income from other sources, including from Mrs Oliver's son, was income or reimbursement is not something we need to consider. At the time of resigning her termination Mrs Oliver was receiving money from her son and from another employer, the amount of which should have been a consideration in any mathematical exercise. [40] It was claimed by the respondent that "Mrs Oliver's necessity for housing was compelling and as such falls within the scope of s.8(3)(c) of the LSL Act, as a `pressing necessity'." It may well have been necessary for Mrs Oliver to purchase a home however the value and type of home she purchased was her choice made in the knowledge of her financial circumstances at the time of doing so, not at the time of her resignation which was some time later. [41] The choices made by the respondent were made taking into account her financial circumstances at the time of making those choices and cannot be retrospectively construed to support a claim to meet the requirements of the LSL Act. [42] We uphold appeal ground 3(ii),(iii) and (iv). Appeal ground 4 [43] As noted earlier we do not consider the issues raised in the appeal ground are relevant to the consideration of the claim by the respondent, as such it is of little consequence whether the Commissioner made an error or not. It is our view that the issues are not relevant in any case as the circumstances for consideration are those applying at the time the resignation was tendered not some possibility of future events. Authorities [44] The parties referred to a number of authorities, most of which relied on the findings in the Computer Sciences decision which provides the test generally applied and referred to earlier. [45] The appellant referred to the following authorities: Thomson v Pauls Ltd [2003] Queensland Industrial Relations Commission [173 QGIG 593]; Alderton v Australian Newsprint Mills Limited [T.716 of 1987], Tasmanian Industrial Commission; Woodhouse v Mount St Vincent Nursing Home and Therapy Centre Inc [T.9268 of 2000], Tasmanian Industrial Commission; all of the above refer to and rely on the Computer Sciences decision. [46] The respondent relied on the following authorities: Burt v Papadelias [T.7697 of 1998], Tasmanian Industrial Commission; The Computer Sciences decision. [47] We address the tests found in the Computer Sciences decision.
[48] It is our view that Mrs Oliver did not satisfy the `pressing necessity' criteria of the LSL Act to enable her to access pro-rata long service leave. The Commissioner acted on a wrong principle and fell into error by making comparisons and assumptions not relevant to his determination. [49] We revoke the order of Commissioner Abey. [50] We note that in most other jurisdictions there is an automatic right to pro rata long service leave after 10 years continuous service with an employer. However, the Tasmanian LSL Act provides an automatic entitlement only after 15 years continuous service, for continuous service of less than 15 years the LSL Act prescribes certain criteria which need to be satisfied.
P L Leary Appearances: Date and place of hearing: 1 Original Transcript PN558 |