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T429

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

 

Industrial Relations Act, 1984

 
T. No. 429 of 1986 IN THE MATTER OF AN APPEAL BY W.J. JAMES, AGAINST THE DECISION IN THE MATTER OF T. NO. 369 OF 1986
   
  RE: LONG SERVICE LEAVE DISPUTE
   
FULL BENCH
DEPUTY PRESIDENT
COMMISSIONER R.K. GOZZI
COMMISSIONER R.J. WATLING
14 October, 1986
   

REASONS FOR DECISION

 
APPEARANCES:  
   
For the Tasmanian Farmers and
Graziers Employers'
Association representing
Mr. W.G. James
- Mr. K. Rice
   
For the Australian Workers'
Union, Tasmania Branch
representing Mr. B.D. Carr
- Mr. R.J. McLachlan
   
DATE AND PLACE OF HEARING:
   
15 July 1986                  Hobart

 

This appeal was lodged by the Tasmanian Farmers and Graziers Employers' Association (T.F. & G.E.A.) on behalf of William George James (the employer) against a decision made by the President of the Commission in T. No. 369 of 1986 in favour of Mr. Baden Desmond Carr (the employee).

The employer was represented by Mr. Rice of the Tasmanian Farmers and Graziers Employers' Association and the employee was represented by Mr. R.J. McLachlan of the Australian Workers' Union.

The grounds of appeal were:-

(i) the President mistook the facts in relation to the extent of Mr. Carr's alleged incapacity;

(ii) allowed irrelevant matters to influence him in relation to the extent of time Mr. Carr was employed by Mr. James.

The hearing of this appeal proceeded by way of a review of the evidence presented at the original hearing and no application was made to introduce fresh evidence.

The industrial officer of the Department of Labour and Industry, Mr. Armsby, gave a factual account of his investigation (under oath) at the original hearing, which was not overturned by the parties then or in these proceedings.

The circumstances relating to this claim for long service leave are somewhat complicated although they can be briefly stated.

The employee commenced work with the employer on 6 September 1970 and was said to have terminated his services on 21 March 1985.

In adverting to the circumstances surrounding the last day of Mr. Carr's employment, Mr. Rice said:-

"...My understanding was that the incident took place on the Wednesday *(20 March 1985). He went to the Doctor on a Thursday *(21 March 1985) and he gave notice at 7 a.m. or something on Friday morning before the start of work. He came back and said he would not be back at work."

"...On the Doctor's certificates here relating to this matter dated 21/3, which the Full Bench can have, where the Doctor says the incapacity commenced on 20/3, but it is dated 21/3." (Transcript page 25).

The employee claimed pro rata long service leave stating that he terminated his employment on account of illness and incapacity. He relied upon Clause 8 (3)(b) and (c) of the Long Service Leave Act 1976, which states inter alia:-

"8(3) (a) ;

    (b) an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment;

    (c) an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment; and

    (d) ........."

The employee having served 14.5397 years described his illness and incapacity as suffering from anxiety, depression and tension headaches.

The certificate supplied by the employee's doctor, dated 21 March 1985, stated that Mr. Carr was unfit for duty as he was suffering from anxiety, depression and tension headaches, and that the incapacity commenced during 1984.

During 1984 and up until 31 March 1985, the employee had made four visits to the medical practitioner; three of the visits involved problems with tension headaches.

A letter from Mr Carr's doctor dated 10 May 1985, stated he saw him on 21 March 1985 and he was suffering from anxiety and depression and he decided, at that stage, that he should stop work. He went on to say:-

"Because of his anxiety and mental state at that time he (the employee) was certainly in a confused state at that time and this may have made him make an inappropriate decision re. his work future." (brackets ours)

The Department of Social Security commenced paying sickness benefits to the employee on 28 March 1984.

Mr. Rice of the T.F. & G.E.A. had obviously spent some time researching the matter under appeal, which was presented in a clear and succinct manner.

He highlighted parts of the transcript of the original hearing where he felt the President of the Commission mistook the facts in relation to the extent of the employee's incapacity. However, in answering a question from the Bench, "is it disputed that Mr. Carr was suffering from anxiety, depression and tension headaches?", Mr. Rice responded by saying "No".

Mr. Rice asserted, however, that the alleged incapacity claimed by the employee at the time of termination was not of such a nature as to justify termination.

We have examined all the relevant facts associated with the first ground of appeal and we fail to see where the President could not have reasonably arrived at the decision he did. We are of the opinion that it was reasonably open to him on all the evidence to find that Mr. Carr left his employment because he (Mr. Carr) genuinely considered himself to be incapable of continuing his employment any longer. That belief was sustained when Mr. Carr's doctor confirmed that he was "unfit for duty" and that the incapacity commenced during the previous year.

We believe it was also open to Mr. Carr to seek relief via Clause 8 (3)(b) of the Long Service Leave Act 1976 as it stands at the moment.

Whilst in that context the Act could have been better drafted, it is our view that an employee may terminate his or her own services through illness. However, for a successful claim to be made for pro rata long service leave, an employee must be suffering from an illness of such a nature as to justify the termination of employment.

Turning now to the second ground of appeal.

We find no evidence to substantiate that the President allowed irrelevant matters to influence him in relation to the extent of time Mr. Carr was employed by Mr. James and, therefore, we dismiss this ground of appeal.

The appeal is therefore dismissed.