IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

The appellant seeks a reversal of the decision of the President in matter T.657 of 1987 wherein payment of pro rata long service leave, amounting to $3,850.04 was awarded to R.G. Lynch, an ex employee of Bass Bakery, who terminated his services after completing some 13 years of continuous service.

In the original proceedings Mr Lynch relied upon Section 8(3)(b) and 8(3)(c) of the Long Service Leave Act 1976, which provide an entitlement where an employee has served at least 10 years but less than 15, and whose services are terminated on account of "illness of such a nature to justify the termination of services, or incapacity or domestic or other pressing necessity of such a nature to justify the termination of services."

Mr Lynch had relied heavily upon the existence of a medical condition which was caused or aggravated by contact with flour in the bakery, and its effect upon himself and his wife, as the prime reason for terminating his services.

The President had dismissed the grounds of incapacity or "domestic or pressing necessity", but granted the claim on the basis of justifiable termination of services on account of "illness" due to an allergic reaction to flour encountered during the course of employment.

Bass Bakery notified five (5) grounds for appeal, i.e.:

At the commencement of the hearing before us, leave was granted to withdraw the first stated ground for appeal.

The remaining grounds of appeal were proceeded with by way of argument based upon the set of facts presented to the President at the original hearing and contained in transcript of those proceedings.

Ground 2:

The President erred in that he failed to give any or sufficient weight to the submissions made on behalf of the Company that the employee had at no time prior to the termination made any complaint in respect to the medical condition.

Mr Edwards argued that the transcript amply demonstrated the number of times the employer had placed on record the fact that at no time in the 13 years of his employment, but more particularly in the last 2 years, did Mr Lynch indicate to the Company that he was having difficulty breathing and that he could no longer work in the doughroom as a result of his allergy to flour.

The significance of this aspect was that if the employer had been made aware of the alleged medical condition, then work in alternative areas may have been arranged to overcome the problem.

Mr Lynch was employed as an operative baker and not as a doughmaker, but worked from time to time in the doughroom as a doughmaker (a higher paid position) on a "mixed functions" basis.

Additionally, work in the doughroom was only performed by Mr Lynch on an overtime basis.

Whilst flour is ever present in the doughroom, it was argued by the employer that other areas of the bakery where Mr Lynch also worked (and allegedly could have remained if necessary) were virtually flour free.

It was argued that it was incumbent upon the employee to make his employer fully aware of his circumstances to permit of the employer the opportunity to take measures designed to alleviate the problem, but that this had not been done.

Mr Edwards also submitted that the President fell into error in concluding that the rearrangement of Mr Lynch's duties away from the doughroom, where the most flour is found, would have been work which was neither that of a tradesman nor would it carry the same rate of pay and was therefore not a reasonable alternative.

Mr Lynch, the employee concerned, denied the allegation that at no time prior to the termination of his services had he made known his medical condition.

His assertion that the production manager had known of his allergy to flour for quite some time was not challenged and we believe that if that was the case then it was not shown that the President had misconstrued the fact in this regard. Neither was it demonstrated that the weight given by the President to the scant evidence of two opposing statements in this regard was not reasonably open to him. As the production manager was informed by Mr Lynch of his condition then, in our view, the employee concerned had reasonably discharged any onus to give the employer proper notice if rectification of the problem was possible.

Similarly, on the other aspect raised, it is clear that whilst the President accepted the fact that the oven area of the bakery involved much less exposure to flour than say the doughroom, he was, in our view, entitled to come to the conclusion that the information was too imprecise to be helpful in determining that particular issue.

It has to be acknowledged that when the President was commenting upon the employer's argument that Mr Lynch could have been assigned alternative work, if he requested it, he expressed the mistaken view that the work which Mr Lynch might have had assigned to him would neither be that of a tradesman, nor would it have carried the same rate of pay.

All parties agree that Mr Lynch's classification was that of operative bread baker, which is a tradesman classification, and he only worked at the higher paid doughmaker's classification outside of his ordinary hours when acting up. Any "loss of wages" would therefore not have been loss of his proper classification rate, but simply loss of overtime which he worked on a regular basis.

However, this mistake of fact does not bear substantially upon the case as it was not pivotal, nor did it constitute one of the reasons given for deciding the case in favour of Mr Lynch.

Our task in deciding this matter is not to review the matter de novo, as if we were ourselves hearing the case. Rather, we need only consider whether the relevant facts were used in logical sequence and the conclusions reached were reasonably open to the person hearing the matter in the first instance.

As a consequence, we believe it was reasonable open to the President to find that the reason given by the claimant as the reason for termination was one which fell within the relevant Act.

Ground 3:

The President erred in that he failed to give any or sufficient weight to the submissions made on behalf of the company as to what was viewed by the Company as to what was viewed by the Company as the real reason for the employee terminating his employment.

We deal with this ground in conjunction with Ground 4.

Ground 4:

The President erred in concluding that he was "unable to make a positive finding in favour of the employee" as to whether his medical condition was the real or motivating reason, and subsequently determined that an entitlement exists.

Mr Edwards sought comfort from the fact that the President prefaced his conclusions regarding the second test taken from the Computer Sciences Case(1) by expressing that he entertained some slight reservations as to whether the necessary criteria had been met. Similarly comfort was taken from a statement by the President that he was "unable to make a positive finding in favour of the claimant" in regard to the third test in the same case.

The second test refers to the question of whether the opinion held by the worker as to the reason for terminating his services was genuinely held by him and not simply colourable, or a rationalisation - meaning simply an opinion that he claimed he held to justify a position that he adopted at the time.

Whilst the President acknowledged some slight reservation in this regard the fact is he accepted that Mr Lynch genuinely believed his problem arose out of continual exposure to flour over a period of 13 years.

We fail to see how coming to a reasoned decision, based upon all of the relevant evidence, albeit with the expression of a slight reservation, can properly constitute part of grounds for appeal.

In the third test however, the President started off by saying that he found himself unable to make a positive finding in favour of the claimant, and that has caused us some concern.

That third test was:

"Although reasons claimed may not be the sole grounds which activated the worker in his decision to terminate, was it the real or motivating reason?"

The conclusion reached by the President was expressed in his decision as follows:

"I am unable to make a positive finding in favour of the claimant in this regard. I formed an opinion that working a fairly regular six-day week may have been a contributing reason for seeking another job. However, the evidence was not conclusive in this regard. Moreover, Mr. Lynch did not deny he was considering purchasing a business prior to termination. But his decision to do so was motivated by his medical condition."

We find some ambiguity in the totality of the words expressed by the President in this part of his decision. Although he stated in the first sentence that he was unable to make a positive finding in the third test to the question of the real or motivating reason for terminating services, he then went on to effectively contradict that statement. The conclusion also raised the possibility of two other motivating factors, but certainly did not, in our view, raise them to the status of being predominant.

Firstly, the President said he formed an opinion that working a fairly regular six-day week may have been a contributing reason for the employee seeking another job, but then added that the evidence was not conclusive in this regard.

We conclude from this that the President was saying, working a regular six-day week was a possible contributing factor but not the real or motivating reason.

In the second alternative reason raised in this particularly critical paragraph the President postulates upon the fact that Mr Lynch did not deny he was considering purchasing a business prior to the termination of his services. However, the President again quickly counters the relevance of this factor by adding the observation that the employee's decision to purchase another business was motivated by his medical condition.

Taking all that was said by the President together we can only conclude that what he was saying was that the real or motivating reason why Mr Lynch terminated his services was his medical condition.

We believe that members of the Commission have a duty to express the reasons for their decision in a clear and succint manner.

Reasons leading up to those findings are relevant, but each element of the evidence needs to be carefully weighed, balanced, and then firmly accepted or rejected.

The failure to give effect to a positive, unambiguous finding, in clearly expressed language could properly constitute an arguable ground for appeal in the present case.

However this matter must succeed or fail on the finding of fact as to whether the President erred on any of the grounds raised.

Since no new evidence or material was before us in these proceedings, an essential part of our task has been to satisfy ourselves as to what the findings of fact were by the President based upon the evidence before him at the relevant time.

The words used by the President in a single sentence relating to satisfying the important third test taken from the Computer Sciences Case could, if taken alone, be construed as meaning that the claimant failed such test.

Whilst the appellant seized upon such words used as being sufficient to prove a point, we disagree with such a narrow approach. Clearly it is necessary to read all of what went to make up a series of remarks which were used to express an overall finding of fact.

Whilst we have conceded that there was a measure of ambiguity involved, we conclude that taking into account the whole of what the President said (and already quoted at page 8) the finding of fact by the President was that the third test applied had been met.

We also conclude that such a finding was reasonably open to the President on the evidence and that the appellant has not demonstrated to our satisfaction that he erred in the manner suggested.

For all of these reasons the appeal is dismissed.

(1) AILR No. 556 at p.562