IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This decision deals with an appeal by, the Derwent Court Nursing Home against a decision and order of Commissioner Watling, dated 5 March 1986, in T.308 of 1986. The Commissioner decided in favour of an employee of that home, Mrs. J. S. Briggs, in a disputed long service leave claim.

The Commissioner's order read:

"ORDER

I hereby order that Judith Suzanne Briggs of 17 Girrabong Road, Lenah Valley, shall be paid by the Derwent Court Nursing Home, a gross amount of Four Thousand One Hundred and Forty Seven Dollars Ninety-One Cents. ($4147.91) being Mrs. Briggs' pro-rata long service leave from 1 July 1975 to 8 August 1985 (ten years, one month, six days) based on a gross weekly wage rate of Four Hundred and Seventy three Dollars Eighty-eight Cents ($473.88)."

The dispute was determined by the Commissioner in accordance with the requirements of Section 15(1)(e) of the Industrial Relations Act 1984 which states:

"15 - (1) Subject to this section, the President shall ...

(e) refer disputes with respect to long service leave as provided by or under the relevant Act to a Commissioner for determination by him under the provisions of the Long Service Leave Act 1976 or the State Employees (Long Service Leave) Act 1950;"

This appeal comes before us by way of Section 15 (1) (f) of the said Act which provides:

"15 - (1) Subject to this section, the President shall - ...

(f) appoint Commissioners to constitute Full Benches to hear - ...

(iii) as provided under the relevant Act, appeals against determinations of a Commissioner concerning disputes with respect to long service leave under the provisions of the Long Service Leave Act 1976 or the State Employees (Long Service Leave) Act 1950;"

The background to the dispute is succinctly recorded at pages 5 and 6 of Commissioner Watling's decision. It reads:

"Mrs. Briggs (the employee) and Mr. Alexander (the employer) had arranged a meeting for 11 a.m. on 8 August 1985. to discuss matters raised by the employee the previous day.

Mrs. Briggs stated that when she turned up at 11 a.m. for the meeting she did not find Mr. Alexander in his office. She then left the Nursing Home to attend to a private matter for which she had an appointment at 11.30 a.m.

Mr. Alexander, whilst not being able to establish his whereabouts at precisely 11 a.m., maintained that he was on the premises and that Mrs. Briggs did not keep the appointment.

Conflicting evidence surrounded this point, however, one thing is certain, the meeting never took place.

Mr. Alexander, presuming Mrs. Briggs had returned to the Nursing Home after noticing her car in the car park, and believing that she had not kept the arranged appointment, contacted her, and the following conversation took place.

Mr. Alexander: "It is Jeffrey here. Are you looking for the sack?"

Mrs. Briggs: "Yes."

Mr. Alexander: "Are you leaving now or in two weeks?"

Mrs. Briggs: "Now."

Mr. Alexander: "I want you off the premises now."

After the conversation, Mrs. Briggs submitted that she collected a couple of books that she had in the office and went and told her husband (an employee of the nursing home) and other staff members that she had just been dismissed and that she was going home."

Sixteen grounds of appeal were relied on by the employer including the catch all, "Such other grounds as the Commission considers appropriate and just". Mr. Fitzgerald appearing for the employer addressed each of the grounds in considerable detail submitting that: "If we are able to prove that he (the Commissioner) did err in any one of those particular grounds, then it is open to this Commission to uphold the appeal." (transcript page 4)

We have given careful consideration to the total submissions of Mr. Fitzgerald. However it is our .view that this appeal should be decided on the interpretation of the actual verbal exchange that took place between the employer and the employee.

Mr. Fitzgerald spent some time analysing events leading up to that exchange in an effort to draw conclusions from them which supported his interpretation of the conversation. In doing so he also highlighted the areas where he considered Commissioner Watling had erred in coming to certain conclusions.

While Mr. Fitzgerald's analysis was helpful in providing an understanding of how and why the conversation took place we believe it is only relevant to that extent. Nevertheless, we believe the fate of this appeal hinges on the conversation between Mr. Alexander and Mrs. Briggs.

In the original proceedings before Commissioner Watling we note Mr. Fitzgerald in his final submission said:

"It appears from our cross-examination, that Mrs. Briggs is in agreement with regard to the account of the conversation leading to her resignation.

And in my submission, in essence that is the only issue to be determined by you.

It is whether the conversation can be taken to be a positive act of termination on the part of Mr. Alexander as the employer or a resignation on the part of Mrs. Briggs the employee.

We did of course look at the evidence which goes to explain the background of the situation of Mrs. Briggs resignation, and I would suggest that that is irrelevant in determining or in assisting why Mrs. Briggs took that action."

(Transcript page 60)

We therefore turn to the question of whether it was reasonably open to Commissioner Watling to find as he did in relation to the brief conversation between Mr. Alexander and Mrs. Briggs.

Mr. Alexander commenced the conversation with Mrs. Briggs by asking the question:

"It is Jeffrey here. Are you looking for the sack?"

The ordinary meaning of the words "the sack" in the context of the circumstances of their common usage is defined in the Macquarie Dictionary as:

"to dismiss or discharge, as from employment".

There can be no doubt about the meaning of the question asked of the employee. Whether it was a serious question or simply in Mr. Alexander's own words "just a question seeking a reason or an apology for not having kept the appointment" is open to speculation. Also open to speculation is the matter of what was in Mrs. Briggs' mind when she answered "yes" to the question. However what transpired after that question was asked and an answer given seems, in our view, to clarify the situation somewhat. After Mrs. Briggs answered "yes", Mr. Alexander then asked: "Are you leaving now or in two weeks?", to which question Mrs. Briggs replied "Now". Mr. Alexander then responded "I want you off the premises now" .

We believe there can be no doubt about the meaning and the intention of the last statement "I want you off the premises now". It seems to us that if there was any doubt about- the employer's intentions at the outset of that very brief discussion, there could be none at the finish. "I want you off the premises now" are words clearly aligned with the actions of an employer dismissing an employee.

Whether at the commencement of the conversation the employer wanted or intended to "sack" the employee, only Mr. Alexander knows. But in the result he did, in our view, do just that. If that had not been his intention, we can only assume that he would have retrieved the situation at the end of the discussion.

Whether Mrs. Briggs engineered her dismissal; or was not prepared after the discussion to attempt to retrieve the situation is not relevant to the determination of this appeal. As we see it, the basic issue is whether Mrs. Briggs resigned or was dismissed.

We do not attach any particular significance to the fact that the employer commenced the conversation with a question rather than a statement. It is unusual, to say the least, that a dismissal should be executed in such a way. However it is clear to us that Mrs. Briggs did not initiate the exchange or termination, as would be expected if it was her intention to resign. We can only conclude that if the question had not been asked of her, the contract of employment would not have been severed at that time.

We have no hesitation in concluding it was clearly open to Commissioner Watling to find as he did in his decision of 5 March 1986. We therefore dismiss the appeal.