IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This matter is an appeal against the decision1 of Commissioner Imlach where he rejected a claim for the payment of pro rata long service leave to Mr W.R. Butler who had terminated his employment with the Municipality of Clarence, as it then was, on the basis of "domestic or other pressing necessity".

The circumstances were that Mr Butler was continuously employed by the Municipality of Clarence as a plumbing inspector from 10 December 1979 to 30 June 1987, a period of 7.556 years.

Mr Butler was paid an annual salary of approximately $25,000, and his wife who also worked for the same employer was paid approximately $18,000 per annum.

Their combined wages allowed them to manage reasonably well, despite having some heavy financial commitments, due in no small part to Mr Butler being required to pay off two mortgages and two lots of municipal rates following his second marriage.

When Mrs Butler had to resign her job and take unpaid maternity leave Mr Butler's uncontested primary costs (which were detailed in evidence) amounted to $30.70 per week more than his net salary.

In addition to those financial commitments already referred to the net deficit in the household income also included basic charges such as electricity, house and car insurance, groceries, medical insurance, water and petrol.

However, no allowance was made for the further negative impact on Mr Butler's financial circumstances for such items as clothing, footwear and reasonable personal and entertainment expenses.

Mr Butler had been very content with his job as plumbing inspector and did not want to leave it.

However, faced with these changed circumstances he felt compelled to resign and take on subcontracting work for a plumber at a much higher rate of pay, and later was able to become an independent contractor.

Mr Butler's grounds of appeal are as follows:

1. The Commissioner erred in that he did not adequately consider the findings of an investigation undertaken pursuant to Section 13 of the Long Service Leave Act 1976

2. The Commissioner erred in that he failed to give adequate consideration to my marital and financial situation at the time of resignation.

3. The Commissioner erred in that he did not consider that the financial difficulties suffered by me created a domestic circumstance which satisfied the requirements of the Act.

4. The Commissioner erred in that he did not give adequate consideration to decisions of other jurisdictions.

Upon examining the reasons for his decision in rejecting the claim for pro rata payment it is not clear that Commissioner Imlach gave full and proper consideration to the uncontested evidence in support of the claimant's circumstances, including the "reasonable man" test referred to in the proceedings before him.

More particularly we have had some difficulty in reconciling the statements that appear in the decision where Commissioner Imlach said at page 2:

"I believe, however, that this case rests on the simple fact that there is no real 'domestic or other pressing necessity' despite all the other factors involved which, though relevant and important, did not impinge upon that single fact."

And at page 3:

"I think it is important to note the other factors raised in this matter on the basis that it may be thought that they had not been adverted to in this decision. They were noted but, I do not consider them directly pertinent to the 'pressing domestic necessity factor'."

(Emphasis ours)

The Commissioner then identified eight matters, including reference to Mr Butler's financial position, that he did not consider were "directly pertinent".

In view of this apparent conflict between the two statements, we are unable to satisfy ourselves that the Commissioner did in fact fully consider and give weight to all of the "factors" he considered relevant and important on the one hand, but later dismissed as not being "directly pertinent".

We are of the opinion therefore that this apparent conflict should have been further discussed and clarified in the decision. Moreover, although he appears to have dismissed Mr Butler's prima facie financial dilemma as not being directly pertinent to "pressing domestic necessity factor" (domestic or other pressing necessity), perusal of the transcript reveals that there appears to have been an error in calculating the net improvement in Mr Butler's net income from subcontracting with his gross income as a Council Inspector.

In all the circumstances we will allow the appeal and refer this matter back to Commissioner Imlach for him to give further consideration to the factors he considered relevant and important but dismissed as not being pertinent. We are of the view that the relevant factors stipulated by the Commissioner could, on close examination, have significant impact on the merits of Mr Butler's claim which was based on "domestic or other pressing necessity".

In any event in our opinion there is a duty of care on the Commission, however constituted, to provide adequate reasons for decisions handed down.

Similarly in this case the appellant is entitled to reasons for or against the relevant factors impinging favourably or not on his particular circumstances which we believe contributed exclusively to his resignation from the Municipality of Clarence, as it then was.

1 T.2077 of 1989