IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This is an appeal by Mr. R. H. Gorman against the decision of Commissioner King1 refusing his claim for pro rata long service leave.

Grounds of appeal relied upon were:

1. The Commission erred in that it did not adequately consider the findings of an investigation undertaken pursuant to Section 11 of the State Employees' (Long Service Leave) Act 1950.

2. The Commission erred in that it did not give adequate consideration to decisions of other jurisdictions.

3. The Commission erred in that it did not give adequate consideration to the applicant's marital situation at the time of resignation.

4. The Commission erred in that it did not consider that the financial difficulties suffered by the applicant created a domestic circumstance which satisfies the requirements of the Act.

5. The Commission erred in fact in that it implied that the reason for the applicant resigning his job was limited to financial reward.

BACKGROUND:

Mr. Gorman was employed as a storeman at the time of his resignation from the Department of Supply and Tender on 27 November 1986. At that date he had completed 9 years and approximately 9 months' service.

He claimed that the need to terminate his employment some 3 months or thereabouts short of the statutory 10-year qualifying period prescribed by the State Employees' (Long Service Leave) Act 1950 was occasioned by "domestic (marital) or other pressing (financial) necessity".

Under the terms of Section 7 of the Long Service Leave Act, an employee is entitled to pro rata long service leave after completing 7 years but less than 10 years' continuous service, if he "resigns his employment on account of domestic or other pressing necessity." However the "prescribed authority" must certify in writing that in his opinion the domestic or other pressing necessity was of such a nature as to justify the employee's resignation.

In Mr. Gorman's case the "prescribed authority" was the Minister for Public Administration. However, the Manager, Supply and Tender Department, having the necessary delegated authority, declined to give the required certificate.

Mr. Gorman then approached the Department of Labour and Industry who, after investigating the matter, recommended that payment be made. This was refused. As a consequence the Secretary for Labour, pursuant to Section 11, referred the matter to the Commission for hearing and determination.

The dispute was heard by Mr. Commissioner King. In his decision dated 7 April 1987, the Commissioner refused Mr. Gorman's application for pro rata payment. He concluded with the following sentence:

"In all the circumstances I do not believe the Employee has satisfied the onus that rests with him, to convince me that his resignation was `on account of a domestic or other pressing necessity'."2

APPEAL PROCEEDINGS:

During proceedings before us, Mr. Vines, who represented Mr. Gorman, attempted to demonstrate that the Commissioner had erred on five separate counts. As a consequence we have been requested to quash his decision and allow the original claim.

Appeals are not re-hearings. We will therefore test each of the grounds relied upon by Mr. Vines against the evidence available to the Commissioner and upon which Mr. Gorman's claim was disallowed.

Appeal Ground No. 1

"The Commission erred in that it did not adequately consider the findings of an investigation undertaken pursuant to Section 11 of the State Employees' (Long Service Leave) Act 1950."

Mr. Vines developed the proposal that the Secretary for Labour, through his inspecting officers, was an "expert" in the field of long service leave. "Expert" status, it was argued, was acquired by reason of the statutory requirement put upon the Secretary to investigate and report to the President on all disputed long service leave matters.

Mr. Vines drew from this requirement [Section 11 (1), (a) and (b)], that the Secretary also had a vested recommendatory responsibility.

For that reason it was claimed the Commissioner, being aware that the inspecting officer in this matter had formed an opinion that Mr. Gorman had an entitlement, had fallen into error in not accepting that opinion as "expert" evidence.

We think Mr. Vines is incorrect in this presumption. There are a number of reasons for this. They are:

1. The Secretary for Labour is not required, expected or entitled to be regarded as an expert in the accepted sense.

2. An expert needs to be accredited as such by reason of some identifiable science, art or skill by virtue of learning, training or experience. Only in those circumstances can, or should, such a person be permitted to give an opinion in a specific field.

Even then a tribunal is not bound to accept the opinion of an expert. It may, in the light of all the evidence before it reject the evidence of an expert and reach a different conclusion.

If, however, the only available evidence relevant to the matter at hand is that given by an expert, prima facie there is an obligation to accept expert testimony in coming to a decision.

But before an expert is permitted to give an opinion, evidence of his qualifications to do so, must be proved, unless accepted by all the parties.

3. We have no basis upon which to find that Mr. Thomson was an expert witness and no reason to believe he was required to give an opinion, unless invited to do so. He should have confined his evidence to a recital of the facts, leaving it to the Commission to decide whether Mr. Gorman had an entitlement or not.

It is difficult to read into Section 11 (1) (a) (b) and (2) that the Secretary has other than an investigative responsibility in respect of long service leave disputes. Nevertheless it might be arguable that a finding on his investigations could also embrace a recommendation. Osborn's Concise Law Dictionary, Seventh Edition, defines "finding" as:

"a conclusion upon an enquiry of fact".

This, we believe, is the highest construction to be applied to the Secretary's role. It means that it was open to the Commission to agree or disagree with that finding depending upon whether or not he accepted the evidence upon which that finding is made. Of course the same evidence that led to the Secretary's finding would have to be before the Commission.

Clearly Commissioner King did not accept Mr. Thomson's conclusions for the reasons given in his decision.

Appeal Ground No. 2

"The Commission erred in that it did not give adequate consideration to decisions of other jurisdictions."

Mr. Vines was obviously able to call in aid a number of decisions and judgments of other courts and tribunals. A Number of these were supportive of his arguments. Mr. Willingham, on the other hand, was able to do exactly the same.

This Commission does not regard itself bound by external precedent. Many judgments relied upon in this case were Supreme Court judgments or decisions of other courts that recognise the doctrine of precedent. This Commission is an industrial tribunal; it is not a civil court. Section 20 of the Act states:

"In the exercise of its jurisdiction under this Act, the Commission ... is not bound by the rules of evidence, but may inform itself on any matter in such a way as it thinks just."

That is not to say that in the appropriate circumstances the Commission will refuse to take cognisance of certain decided cases. A clear example of this might be National Wage cases and certain judgments of the High Court. But we think it would be difficult for an appellant to successfully prosecute an appeal if the only ground relied upon was that a tribunal member had declined to follow a decision or a number of decisions of other unrelated courts or tribunals.

Industrial tribunals are concerned more with facts than with precedents. Few industrial disputes are resolved by resorting to earlier decisions of other tribunals.

Precedents may be classified into four groups. These are:

1. Original precedents - those which create and apply a new rule;

2. Declaratory precedents - those which merely suggest the application of an already-existing rule of law;

3. Authoritative precedents - those which are binding and must be followed;

4. Persuasive precedents - those which need not be followed but are worthy of consideration.

We would regard those decisions to which we were referred as persuasive but not authoritative.

Accordingly we dismiss this ground of appeal.

Appeal Ground 3)
Appeal Ground 4)

"3. The Commission erred in that it did not give adequate consideration to the applicant's marital situation at the time of resignation.

"4. The Commission erred in that it did not consider that the financial difficulties suffered by the applicant created a domestic circumstance which satisfies the requirements of the Act."

We have combined these grounds as both were more or less joined by Mr. Vines and responded to in the same way by Mr. Willingham.

We note from the Commissioner's decision that he had difficulty in accepting Mr. Gorman's evidence in relation to his domestic situation. Moreover, it is clear from his reasons that he also had some reservation about the total household income and the fact that Mr. And Mrs. Gorman could not afford to have another child.

Although he does not say so, we believe the Commissioner could not accept that Mr. Gorman's "domestic" necessity as distinct from his "financial" necessity was such as to justify termination at that time.

We have given careful consideration to this aspect of the appeal as either "domestic necessity" or "other pressing necessity" could have justified the appeal succeeding had we been persuaded that the Commissioner failed to give proper consideration to matters relevant to either of these factors.

However it seems to us that he diligently applied his mind to each issue. Although the domestic and financial questions became somewhat convoluted, there appears to be no question that the Commission was not prepared to accept that Mr. And Mrs. Gorman's combined income was so low as to justify Mr. Gorman's resignation some three months before becoming entitled to long service leave in his own right.

There was evidence from Mr. Gorman himself that he was greatly attracted to taking up what appeared to him at that time to be a new position that offered a great deal more money than the position he then held.

There was only limited evidence regarding the domestic issues. Nevertheless it was admitted that there had been a family separation for one week nine months or so prior to Mr. Gorman terminating his services. But on our reading of the transcript it appears that both Mr. and Mrs. Gorman wanted the marriage to survive and took appropriate steps to stabilize that situation. One of the steps taken involved counselling from the parish priest.

If we were to entertain any reservations regarding the Commissioner's handling of the matter we would have to say that it appears to us somewhat unfortunate that the Manager of the Supply and Tender Department was not called to give oral evidence. Had he done so the Manager could have been cross-examined regarding the reasons why he declined to given the certificate sought by Mr. Gorman.

Other aspects of a factual nature regarding Mr. Gorman's classification, including his salary and promotion prospects may have surfaced as a result.

It is also somewhat unfortunate that all the documentary material contained in the Secretary's report was not made available to the parties. It appears that a good deal of detailed information contained in the Secretary's report did not find its way into the transcript. It was therefore not part of proceedings before the Commissioner.

We think that generally speaking all information relevant to determination of a matter should, as far as is practicable, be placed on the table in order to facilitate a finding on the facts.

It is possible that individually we may not necessarily have reached the same conclusions for the same reasons as the Commissioner. But collectively we can find no reasons to overturn his decision.

In matters of this kind that turn on the weight given to evidence, it is difficult to overturn a decision simply because discretion was exercised in a certain way. Provided it was open to the Commissioner to take the decision he did, an appellate tribunal will not substitute its own decision for that which is under challenge. To do so would constitute a re-hearing.

There is no doubt that Mr. Gorman was unfortunate in forfeiting the long service leave for which he was so close to qualifying. But on his own admission the job on offer at the time of resignation was too good to miss. As it turned out this was not to be the case.

Appeal Ground 5

"The Commission erred in fact in that it implied that the reason for the applicant resigning his job was limited to financial reward."

Commissioner King was obviously not convinced that Mr. Gorman's financial plight was so desperate as to justify voluntarily terminating his services 78 days before obtaining an automatic entitlement to long service leave.

We have already noted that the Commissioner was not convinced that Mr. and Mrs. Gorman's combined income of not less than $26,000 per annum was so low as to justify termination at that stage. We can discover no evidence of hardship that was presented during proceedings sufficiently persuasive to compel a reasonable man to accept Mr. Gorman's assertion that he terminated due to "other pressing or financial reasons."

Unquestionably Mr. Gorman was finding it difficult to make ends meet. But regrettably this is a situation not uncommon among many people today.

It might well be, as was suggested, that the possibility of missing out on what appeared to be a lucrative position was the motivating reason for Mr. Gorman terminating his employment when he did.

On balance we are not prepared to interfere with the Commissioner's decision. Accordingly the appeal is dismissed.

1 T.618 of 1986
2 Ibid