TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70 appeal against decision

Hazell Pty Ltd
(now Trident Consolidated Industries)
(T6181 of 1996)

Appeal against a decision handed down by Commissioner P A Imlach on 1 April 1996 in matter T6029 of 1996 - Long Service Leave - pro rata entitlement - appeal upheld

REASONS FOR DECISION

This appeal application was lodged by the Hazell Pty Ltd (now Trident Consolidated Industries)(the employer) pursuant to s.70 of the Industrial relations Act 1984, against a decision handed down by Commissioner Imlach on 1 April 1996.

Arising out of that matter, the employer was ordered to pay $3,764.91 to Mr Robert James Goodman (the employee) of 14 Fontain Circle, Rokeby within 21 days in full settlement of an entitlement to pro rata long service leave.

The grounds of appeal were as follows:

I. That the Commissioner erred in not finding that the employee's failure to approach the Company denied the Company the opportunity to allay any fears the employee may have had over his employment security.

II. That the Commissioner erred in not finding that a reasonable man would in the circumstances have approached the employer to seek assurance over his employment security.

III. That the Commissioner erred in fact in stating that Hazell Pty Ltd went into an administrative arrangement on 7 November 1995 and that Mr Terry O'Connor took over the effective control of Hazell Pty Ltd in October 1995.

IV. That the Commissioner erred in not deciding whether there was a "Pressing Domestic Necessity" or "Other Necessity".

V. That the Commissioner erred in that he failed to consider or give sufficient weight to the fact that the employee

a) had been told that his position was secure

b) knew his redundancy entitlement was 3 weeks pay per year of service

c) knew that the TWU had negotiated an agreement with TNT to take retrenched employees from Hazell Pty Ltd

d) Had only day to day expenses

e) knew of other employees who were less satisfactory that (sic) he was and had less experience

f) was utilising heresay (sic) and gossip

g) knew the TWU had secured agreement with TNT to take on Mr Goodman

h) knew that the future of TNT was not secure

i) did not know whether he would definitely be made redundant from Hazell Pty Ltd

j) accepts that casual drivers would have their hours reduced first before any redundancies

VI. That the Commissioner erred in finding Mr Goodman's reason for leaving Hazell Pty Ltd was his real and motivating reason and that this reason amounted to a "pressing domestic or other pressing necessity".

VII. That the Commissioner erred in that he failed to consider or give sufficient weight or to specifically reject the principles or comments referred to in decided cases referred to in the submissions of the Company.

HISTORY

The employee commenced his employment with Hazell Bros on 14 January 1985 and ceased his employment with Hazell Pty Ltd on 12 May 1995.

The employer's undated document titled `Termination Details' states the reason the employee terminated his employment was that he -

accepted an equivalent position with TNT Seafast.

In correspondence dated 4 July 1995 the employee advised the employer of his reasons for terminating his employment and concluded by requesting payment for long service leave. It stated inter alia -

Dear Sir,

On advice I have received I am writing to inform you of my reasons for leaving Hazell Pty. Ltd. after 10½ years. Firstly it was common knowledge amongst employees that the company was in financial trouble. Then rumours were circulated that at least nine employees would be dismissed and after failing to get confirmed who exactly and taking into account that 44years of age and married, job prospects would not be plentiful, I became concerned for my future Then it was brought to my attention by the union delegate that TNT had positions available for those who were sacked, however as the applications for these had a time limit, I had to apply before I was actually dismissed. At the time I left the employ of Hazell, I was under the impression that I would be paid all my entitlements including long service leave and since then I have been informed this is not the case. I therefore would appreciate your reply in writing as soon as possible, of your position as far as payment of long service leave stands.

Yours sincerely
(Robert J Goodman 4.7.95)

The employer responded to the employee in correspondence dated 18 July 1995 in the following manner:

With regard to your letter of 4th July 1995, under Section 8(2) of the Long Service Leave Act 1976, an employee is not entitled to long service leave payment unless the employee has 15 years service.

However, under Section 8(3) an employee is entitled to pro rata long service leave after attaining 7 years service but only in certain specific circumstances as outlined in that subsection. Resignation to take on a new position is not one of those specific circumstances covered in Subsection 8(3).

As you have fulfilled neither the requirements of Section 8(2) or Section 8(3), the Company believes that it has no obligation to make a payment to you for pro rata long service leave upon resignation.

Yours sincerely,
HAZELL PTY. LTD.
(Andrew Fisher)
Andrew Fisher
ADMINISTRATION MANAGER

Having received that response the employee completed a `Record of Complaint' with the Department of Industrial Relations, Vocational Education and Training, Industrial Relations Branch on 21 July 1995. In that record of complaint the employee stated, under the heading of `Termination and Other Details', the following:

Approximately early May 95 I was told, along with other employees at Hazells Pty Ltd by our Union Representative, Dennis Tringrove that nine employees were soon to be sacked/put off work in the Hobart area because the company was having financial difficulties. Enquiries by myself & other employees failed to reveal who would be put off & when. A notice appeared on our notice board at work. The notice was from TNT offering 6 positions in Hobart & 3 positions in Launceston for Truck Drivers, Forklift Drivers & office workers. The applications had to be in by 6th May - which was a few days after the notice was put up.

I applied for a forklift drivers position in Hobart & was successful in obtaining a position. I verbally resigned to Damian Rossendale at Hazell Pty Ltd on 12th May 95, gave 1 weeks notice and finished on 19th May 95 - I commenced at TNT on 22nd May 95.

I felt I was forced into taking the job with TNT. My employer Hazell Pty Ltd, through their Union Representative told all Union members that 9 employees would be put off from the Sunderland Street Branch. There were 30 to 35 employees at Sunderland St, at the time. Dennis Tringrove & Ken Bacon ran the meeting. The meeting was held on Tuesday 9th May. Dennis Tringrove told us the week before that 9 people would be put off. At the meeting on 9th May we were told the the 9 people who were put off would be offered jobs with TNT.

Due to the fact that Hazell P/L never told us who the 9 people were I had to apply for the job with TNT. I have a wife to support, & rented accommodation to Housing Department. I am earning $100 approx less per week now, as I had overtime at Hazell P/L. I feel that I have been forced into resigning & have an entitlement to Long Service leave. The dates in this statement are to the best I can remember.

In the report referred to the President of the Commission for a hearing and determination, pursuant to s.13(2) of the Act, it was stated that the employee claimed that he had continuous employment with the employer from 14 January 1985 to 12 May 1995 and -

on termination of employment was entitled, under Section 8(2)(b) and Section 8(3)(c) of the Act to pro rata long service leave.

And s.8(2)(b) of the Long Service Leave Act 1976 states inter alia -

(2) Subject to subsection (4), the period of long service leave to which an employee is entitled under the Act is -

(b) in the case of an employee to whom this paragraph applies by virtue of subsection (3) who has completed 7 years', but has not completed 15 years', continuous employment with his employer such period of long service leave as bears the same proportion to 13 weeks as the total period of the employee's continuous employment with his employer bears to 15 years.

Section 8(3)(c) states inter alia -

(3) Subsection (2) (b) applies to -

(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;

The Commissioner, when deciding the matter under s.8(3)(c) of the Act, was required to determine whether the employee terminated his employment on account of incapacity or domestic or some other pressing necessity and that it was of such a nature as to justify the termination.

In our opinion there was an onus on the employee to demonstrate, during the original hearing:

(a) why it was necessary to terminate his employment, i.e. that some real and genuine problem existed at the time of resignation and that an undesirable consequence would have occurred had he not resigned; and

(b) that the reason was sufficient to justify his actions and was within the meaning of s.8(3)(c) of the Act.

In his decision Commissioner Imlach stated, that around the time the employee terminated his employment, the company was having financial difficulties and this was well known to everyone, the employees in particular. He said that one of the other facts was that the company told its employees it intended to make retrenchments, but, it did not nominate which employees were to be laid off.

He went to state -

I am satisfied that the Employee was genuinely convinced his continued employment was under threat and this was the real reason for his decision to leave the Company and take up the other like employment, which was available to him at the time.

Whilst the Commissioner was -

satisfied that the Employee was genuinely convinced his continued employment was under threat ...

nevertheless, that does not of itself establish that the employee terminated his employment for the reasons prescribed under s.8(3)(c) of the Act.

We cannot find anywhere in the decision where the Commissioner established that the employee terminated his employment on account of incapacity or domestic or some other pressing necessity.

In the circumstances we find that appeal ground IV is sustained and the appeal is upheld on that ground alone. That being the case we are of the view that it is not necessary to make a finding in relation to the other grounds of appeal.

CONCLUSION

Given our finding in this matter we revoke the Order of Commissioner Imlach dated 1 April 1996 arising out of application T6029 of 1996.

Appearances:
Mr S Gates with Ms J Thomas from the Tasmanian Chamber of Commerce and Industry Limited for Hazell Pty Ltd (now Trident Consolidated Industries)
Mr M Shirley with Mr T Lyons for the Secretary, Department of Industrial Relation, Vocational Education and Training (now The Chief Executive, Workplace Standards Authority, Industrial Awards Division)
Mr K Bacon for the Transport Workers' Union of Australia, Tasmanian Branch and Mr R Goodman

Date and place of hearing:
1996
May 9
Hobart