IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This is an appeal against a decision made by Deputy President Robinson arising out of application T.747 of 1987.

The decision which was handed down on 10 June 1987 rejected an application made by Mr. L. N. Behrens for pro rata long service leave on account of domestic and other pressing necessity.

Mr. Behrens, the appellant in this matter, was continuously employed by the Tasmanian Government Insurance Office from 14 February 1977 until 19 September 1986.

He relied on the following grounds of appeal: -

"1. The decision of the Commissioner was not reasonably open to the Commission on the evidence presented during the.

2. The Commissioner did not take into account some important material considerations.

3. The Commissioner mistook the facts especially in relation to the employment gained by the Appellant's wife.

4. The Commissioner allowed extraneous or irrelevant matters to guide or effect him."

At the original hearing, the only evidence which Mr. Behrens relied on was the statement of facts presented to the hearing by the Industrial Officer of the Department of Labour and Industry. The facts were not disputed by either party.

The main thrust of the submission presented by Mr. Behrens in this appeal broadly falls into five categories, and we will deal with them sequentially.

1. Mr Behrens maintained that the Deputy President erred by taking into account his wife's earnings at the time of his resignation, and overlooked the important fact that his wife had returned to work because of the family's financial position.

He also maintained that his wife's position in the work-force was to be reviewed at the end of 1986, and there was no guarantee of continued employment

We believe it was reasonably open to the Deputy President in this case to take into consideration Mrs. Behrens' earnings at the time her husband terminated his employment. There is no doubt that the Deputy President was required to consider all the relevant facts at the time of Mr. Behrens' resignation, especially given the circumstances whereby he was claiming financial hardship. The Commission was not required to consider what may or may not happen to the future income of the family, especially as it relates to Mrs. Behrens.

We are not therefore persuaded to uphold the appeal based on this submission.

2. Mr. Behrens argued that the Deputy President took into account the value of his house, and this was an irrelevant fact.

We disagree with this submission as the original decision of the Commission highlighted the weekly payment of the mortgage as an expense item, as opposed to the value of the house. We are satisfied that the decision does not stray from consideration of the recurrent financial weekly commitments of the appellant.

3. The appellant emphasised that the TGIO knew of his financial position as if to say this in itself justified the payment of pro rata long service leave.

We must point out that an employee is required to satisfy the provisions of the Act before an entitlement falls due, even though the employer may have some understanding of the financial position of the employee, nevertheless the onus is still on the applicant to demonstrate that he terminated his employment because of a domestic or other pressing necessity.

4. Mr. Behrens submitted the comment made by the Deputy President, in his decision that "prima facie the new job at the Royal Yacht Club would be more interesting given that Mr. Behrens testified his hobby was sailing", was irrelevant.

We agree that this observation is not relevant, however we do not believe that it was an influencing factor in arriving at his decision.

5. The next major point raised by Mr. Behrens in this appeal was that the Deputy President did not take into account such things as the replacement of motor vehicle, repairs to the house and medical expenses.

In the original hearing, Mr. Behrens maintained at the time of his resignation his normal weekly running expenses were: -

Mortgage	$	75.00
Rates/Taxes	$	15.00
Motor Vehicle	$	30.00
Groceries	$	100.00
House Maintenance	$	10.00
Power/Telephone/Heating	$	25.00
Clothing	$	10.00
Travelling	$	10.00
Miscellaneous Expenses	$	15.00
TOTAL	$	290.00 per week

The original decision was made on the uncontested facts submitted at that hearing.

If the appellant failed to submit all the relevant material at the original hearing then he does so at his own peril.

We are of the view that the appellant has failed to discharge the onus of proof required of him to overturn the original decision, and we find that none of the grounds of appeal have been satisfied.

We have no hesitation in concluding that it was clearly open to the Deputy President to find as he did in his decision dated 10 June 1987.

We therefore dismiss the appeal.