This appeal was brought by Savage River Mines (the Company) against a decision made on 15 May 1987 by Commissioner King, arising out of application T.629 of 1986. The decision granted Mr. N.T. Carey, an ex-employee of the Company, pro rata long service leave in accordance with Section 8(3)(c) of the Long Service Leave Act 1976 (the Act).

The Commissioner found Mr Carey had terminated his employment because of domestic necessity.

The grounds of appeal relied on by Mr. Evetts for the Company were that Commissioner King: -

(a) misinterpreted the evidence presented; and

(b) did not take into proper consideration the information submitted before him.

It was Mr. Evetts' submission that Mr Carey's claim for pro rata long service leave was based on:

1. Mr Carey's belief that the Company had unreasonably refused a request for annual leave;

2. His concern that his childrens' education at Savage River was deificent; and

3. His wife's ill health.

Mr. Evetts correctly stated that Commissioner King had rejected the first two reasons.

The main thrust of Mr. Evetts' submission in this appeal was that the Commissioner had relied on two statements made in a letter dated 11 October 1985 from Dr. R. Taylor to Dr. A. Caseleyr, and took them out of context.

We do not agree with this synopsis.

Quite clearly the Commissioner considered two medical reports which he felt were of real assistance to him in arriving at his decision.

The first was a report from Dr. A. Blake dated 12 March 1987, which in brief highlighted that: -

1. Mrs. Carey never accommodated to life on the isolated West Coast.

2. In 1981 she was a total nervous wreck and lost weight and had terrible stomach problems.

3. The reason attributed to Mrs. Carey's loss of weight was her marriage break-up.

4. The marriage was later patched up and they had another child in an effort to reunite the family.

5. Soon after the birth of the baby, the marriage began to experience further stresses and strains.

6. Mrs. Carey finally decided to leave her husband in September last to live in Devonport, and Mr. Carey found it impossible to cope in Savage River without his wife and family and decided to join them in Devonport.

7. By undertaking this course of action, Mr. Carey thought it would unite the family, but unfortunately this did not occur.

From the evidence in the original hearing and comments made in the Commissioner's decision we glean the Mr. Evetts was of the opinion that Dr. Blake's report was in some aspects unsatisfactory, and of limited value in deciding the claim for pro rata long service leave.

Whilst Commissioner King accepted some of the points made by Mr. Evetts, nevertheless he did not reject Dr. Blake's report.

In addition to that report, he proceeded to draw on Dr. Taylor's letter to help him reach a conclusion. From this he highlighted two observations: -

1. That there was a "fairly rocky marital situation"; and

2. There were "other emotional problems surrounding her".

These observations backed up the report given by Dr. Blake and therefore it was reasonably open to the Commissioner to arrive at the conclusion he did.

This is an appeal against the exercise of a discretion by a Commissioner. In determining the appeal it is not a matter for this bench to decide whether we consider we would ourselves have exercised that discretion differently.

In this case, we would only have been prepared to interfere with the Commissioner's decision had we been satisfied that an error had occurred, which resulted in failure to exercise discretion in a proper manner.

We are of the opinion that the appellant has neither discharged the onus required of him, nor have the stated grounds for appeal been satisfied.

In the circumstances, we have no alternative but to disallow the appeal thus allowing the original order to stand.