T10297
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Department of Infrastructure, Energy and Resources, and Blockmack Pty Ltd t/a Waverley Woollen Mills
Long service leave dispute - pro rata entitlement - whether domestic or other pressing necessity - order issued REASONS FOR DECISION [1] This application was made by the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards, Tasmania, pursuant to s.13 of the Long Service Leave Act 1976 (the Act) for a hearing to settle a dispute concerning the non-payment of pro rata long service leave. [2] The dispute was between Kevin James Webb (the employee) and Blockmack Pty Ltd t/a Waverley Woollen Mills (the employer). [3] The employee was claiming an entitlement to pro rata long service leave pursuant to s.8(2)(b) of the Act for reasons specified in s.8(3)(c); that is -
[4] The application, dated 8 July 2002, was received by the Commission on Tuesday 9 July 2002, together with a report prepared by Mr Terence Peter Hurley, Inspector, Workplace Standards Tasmania, Department of Infrastructure, Energy and Resources. A hearing date was set for the following Tuesday, 16 July 2002, at 9.30 am. The applicant, Mr Webb, represented himself, Mr G Thomas and Mr T Hurley appeared for the Secretary, Department of Infrastructure, Energy and Resources, and the respondent employer entered no appearance. The hearing proceeded in the absence of the employer. Mr John Fahey, of Blockmack Pty Ltd, informed the Commission, in writing, on 2 August 2002 that:
[5] I take this to mean the fact that the hearing proceeded in Mr Fahey's absence. I do not believe that the employer's position has been prejudiced, and deal with this aspect before moving to the merits of the case. [6] On the morning of Thursday 11 July 2002 the secretary of Mr Fahey's lawyer [Mr Simon Brown], telephoned the Commission and said that Mr Brown would be appearing for Mr Fahey, but would be in Court that day and therefore unable to make that date. No mention was made of Mr Fahey's availability or otherwise. [7] My associate telephoned Mr Brown's office and left a message to the effect that, under the terms of the Long Service Leave Act 1976, the parties are not able to be represented by lawyers. Section 14A(1) states:
[8] On the same day, the applicant's wife, Mrs Helen Webb, informed the Commission that she and her husband had booked a passage on the boat to Tasmania (from Melbourne) for the following Monday in order to attend the hearing on Tuesday. [9] On Monday 15 July 2002 Mr Brown's secretary rang and requested an adjournment on the basis that the date was not convenient for Mr Fahey. My associate informed Mr Brown's secretary that it was not possible to change the date because Mr and Mrs Webb were either on their way to, or had already arrived in, Tasmania in order to attend the hearing. [10] At 5.15 pm on Monday 15 July (the night before the hearing date) Mr John Fahey rang the Commission, stating that the hearing time was very inconvenient for him. He was informed by my associate that the hearing could not be adjourned because it was too late to do so as it was set down for the next morning and the applicant had already travelled from Victoria to Tasmania to attend the hearing and there was no way of contacting them before the time set for the hearing. [11] Mr Fahey, in correspondence referred to below, said that he received only two working days' notice of the hearing. I am quite satisfied that a Notice of Hearing was transmitted to Blockmack Pty on Wednesday 10 July 2002. This is confirmed by the fact that Mr Fahey's lawyer was aware of the hearing date on the morning of Thursday 11 July (when his secretary telephoned the Commission). Clearly, Mr Fahey must have received the notice and passed the information on to his lawyer. Whilst recognising that the notice was still short, it was not two days. [12] I add that at no time did Mr Fahey provide the Commission with a reason for his decision not to attend. Whether or not the notice was short, it was Mr Fahey's choice not to attend. If there was a reason which made attendance impossible, that reason was not provided to the Commission. The Commission was not aware until the receipt of a facsimile, transmitted at 9.51 am on Tuesday 16 July, 20 minutes after the scheduled hearing commencement time, that the employer would not be represented. The facsimile said, inter alia:
[13] This was the earliest that the Commission became aware that Mr Fahey, or his representative, would not be attending the hearing, which proceeded in his absence. [14] Mr Fahey made a number of statements in his written correspondence, all of which I read into the record of the hearing. He also said in his correspondence that he would have asked Mr Hurley (of Workplace Standards Tasmania) to confirm those statements. During the hearing, I read each of those statements out to Mr Hurley and asked for his response. [15] On 24 July 2002, I wrote to Mr Fahey in the following terms:
[16] Mr Fahey did respond, in writing, dated 2 August 2002, and I have considered his response in reaching my decision. [17] I consider that the case of the employer has not been prejudiced, for the following reasons: [18] Mr Fahey was put in no worse situation than was the applicant, in terms of notice of the hearing. Indeed, he was given notice of the hearing in advance of the notice being given to the applicant. The applicant lives in Victoria. Mr Fahey is based in Launceston, where the hearing took place. Mr Fahey chose not to attend. Mr Fahey was in possession of, and given a chance to respond to, all documents relied upon. He had in his possession the full report from the Workplace Standards Authority, including all attachments, reports and documents, which he had been sent on 8 July 2001. The statements Mr Fahey provided to the Commission, in writing, during the hearing, were entered into the record, and the statements he said he would have put to Mr Hurley of Workplace Standards Tasmania were put to Mr Hurley by myself. Mr Fahey was provided with a copy of the transcript of the hearing, and given adequate time to consider and respond to matters raised during the hearing. He did respond, and that response has been taken into consideration. For all these reasons, I do not agree with Mr Fahey that his position has been prejudiced. [19] I now deal with the substantive aspects of the dispute. Background [20] The background, as established through the report1 supplied by Workplace Standards Tasmania, is that Mr Kevin James Webb was employed by Blockmack Pty Ltd, trading as Waverley Woollen Mills, for a continuous period of approximately seven a half years. In September 1994 he moved to Tasmania to take up the position of Factory/Weaving Manager, commencing on 30 September 1994. He lived on site and was on call seven days a week. His rate of pay at the time of termination was $1250.00 per week2. The amount claimed is $8079.403. [21] In Mr Webb's written statement provided to Workplace Standards Tasmania4 he said that his wife had a very close relationship with her parents, who, over the past twelve months, had been in and out of hospital. His wife had visited her parents, but that was difficult, because of the needs of their young children. Mr and Mrs Webb have children aged 13, 11, 9 and 6 years. [22] Mr Webb said that in early February 2002 his wife told him that she wanted to return to Melbourne to be closer to her parents. Her mind was made up and she gave Mr Webb an ultimatum to the effect that she was going and taking the children, with or without him. Mr Webb, in his statement, said that he had no other choice but to hand in his resignation. [23] He gave his resignation to Mr John Bernard Fahey, Director, Blockmack Pty Ltd, on 1 February 2002, with a termination date of 15 March 2002. A couple of days later Mr Webb's father in law was admitted to hospital. Shortly thereafter his wife was also admitted to hospital, and Mr Webb took carers' leave. On the last day of work he was told by Mr Fahey that he was not entitled to long service leave payment because his reasons for leaving did not entitle him to a payment for pro rata long service leave. [24] Mrs Webb, in information provided to Workplace Standards Tasmania, said:
[25] In information supplied to Workplace Standards Tasmania by the employer, Mr Fahey had said that the reason for disputing Mr Webb's claim for pro rata long service leave was that he had sought advice from Workplace Standards Tasmania and was acting in accordance with that advice. Documents included with report [26] In the report from Workplace Standards Tasmania are a number of documents. These include: Letter of resignation [27] A copy of the letter of resignation from Mr Webb, dated 15 February, in which he sets out the reasons for his resignation as being:
Medical Reports
4. A report from Dr James Choong, Creswick Medical Centre, saying:
5. A report from Ballarat Health Services, dated 12 December 2000, concerning the admission to hospital of Mr John Stubbs. It lists "other active illnesses" as high cholesterol, hypertension and arthritis.11 The hearing [28] Mr and Mrs Webb stated, for the record, that the remarks attributed to them in the Workplace Standards Tasmania Report were correct and as made to the Authority. Mr Webb's evidence [29] Mr Webb testified that what had been provided in the report to Workplace Standards Tasmania was exactly what had happened. He said that his wife's parents were very ill and had been so over the past two years and were getting worse. His wife's fear of flying was a major contributor to her not being able to see her parents as often as she would like. Her father's most recent admission to hospital had been critical, his heart had had to be re-started. He is soon to have another operation. His wife had told him that she could not be apart from her parents any longer and that she was going to leave with or without him, taking the children with her. [30] Mr Webb said that did not want to be apart from his wife or his children. He made the decision to go with his family. [31] He said:
[32] Mr Webb said that if he had not returned to Melbourne with his wife they would probably have separated at that time. They had been married for fifteen years. [33] Mr Webb was asked by the Commission whether there were any alternatives to resignation. He said:
[34] Mr Webb said that he did not have another job to go to at the time of the resignation. Mrs Webb's evidence [35] Mrs Helen Webb's evidence was that her parents had got sicker and that she just had to be with them. When her father became ill the last time she just had to go home and hope that Kevin (Mr Webb) would come with her. She had said to him that she was going to go and take the kids. Mr Fahey's statement [36] Correspondence received from the employer on the day of the hearing, signed by Mr John Fahey was read into the record, and is reproduced here:
1/ Feb 27th @ 9.00am
2/ April 29 @ 3.40pm
[37] Mr Fahey said, in the above document, that, were he present at the hearing, he would have asked Mr Hurley, in front of myself, to confirm the circumstances as he had outlined them. In Mr Fahey's absence, I went through the document with Mr Hurley. Mr Hurley's evidence [38] Mr Hurley said that he had met with Mr Fahey on 27 February at 9am. He had been at Mr Fahey's place of work in relation to another matter. Mr Fahey had
[39] Mr Hurley agreed that at some stage, probably on the next occasion that he saw Mr Fahey, Mr Fahey had read Mr Webb's letter of resignation out to him. Mr Hurley said that he had the Long Service Leave Guide with him, but he could not remember whether he quoted any cases from the book to Mr Fahey. Mr Fahey's assistants were taking notes at the time. He agreed that he said to Mr Fahey that Mr Webb had no entitlement to long service leave because he could stay if he wanted to. [40] Mr Hurley said that he met with Mr Fahey again on 29 April 2002 at 3.40pm and that the same two people were present who had been present on the previous occasion. This meeting was in relation to Mr Webb's claim. On that occasion he had offered his opinion, which was something along the lines quoted by Mr Fahey, namely that there had been several more pressing matters that had not got up. Mr Hurley said that the investigation was still in its early stages but that it was fair and reasonable that Mr Fahey should use his responses to gauge what he should do. However, it was merely an opinion that he was offering. [41] The comment that Mr Fahey attributed to him of "I don't believe it's the case of justifiable means for the payment of pro rata long service leave" and the implication that it might be cheaper and less involved to settle the matter, did not happen at that meeting, according to Mr Hurley. He said that there were several telephone calls to Mr Fahey as information came to light and that during those telephone conversations he had told Mr Fahey that it seemed as though there might be an entitlement and that Mr Fahey should start to consider whether he should make an offer or make the full payment. [42] Mr Hurley said that in his opinion there was an entitlement and that he advised Mr Fahey of that, and made a diary note to that effect. He had done so on two occasions. There were three relevant entries: [43] The first of these was on 27 February 2002; this entry confirms the meeting that Mr Fahey said took place on that date. [44] The second was on 29 April at 3.30pm which was the date of a meeting with Mr Fahey and Mr Webb. [45] The third was on Monday 27 May 2002, which was of a telephone call with Mr Fahey. The diary entry read:
[46] Mr Hurley said that he had had no further contact with Mr Fahey since that date. Mr Thomas' statement [47] Mr Gary Thomas, of Workplace Standards Tasmania asked to be able to put a statement on the record. The statement is as follows:
[48] I indicated at the hearing that I would provide a copy of the transcript of the hearing to Mr Fahey and give him a reasonable amount of time to make any responses that he might want to make and then provide Mr Webb with the opportunity to reply. I subsequently wrote to Mr Fahey on 24 July 2002, enclosing a copy of the transcript and giving him until Friday 2 August 2002 to respond. A response was received on that date, which was forwarded to Mr Webb on the same date, giving him the opportunity to respond. Submissions [49] In a document received by the Commission on 2 August 2002, Mr Fahey said:
[50] In a letter dated 15 August 2002, Mr Webb had the following to say in reply: "I am writing in response to the letter received from John Fahey, dated 2/8/2002. I dispute what John has to say about my entitlement to pro rata Long Service Leave. There was no plan to leave my job as soon as 7 years were up. My wife made her mind up to go approximately 6 weeks prior to our leaving, we had already purchased our children's schoolbooks and uniforms for the year 2002. I have been able to get a copy of the receipts for some of the books also our 12 year old daughter was starting year 7, and did this twice at two different schools, it was difficult for her, and this we would never plan to do. When I gave notice to John Fahey I did not have a job to go to, but I did start looking and upon my return to Melbourne was out of work for about 3 weeks. I would like to point out that in my current job I am earning considerably less than I did in Tasmania. I have enclosed a letter stating when I started work in Melbourne and my gross salary. Madam Commissioner in the transcript that John Fahey was sent, everything said in it was said under oath, and answers were given by us honestly and without legal assistance." FINDINGS [51] In considering the evidence, I have not taken into account those aspects of Mr Webb's written response which went to new evidence not before the Commission or the employer either in the form of the Workplace Standards Tasmania Report or entered into the evidence on the day of the hearing. [52] Initially, the reason for the employer's decision not to pay the pro rata long service leave entitlement was that an inspector from Workplace Standards Tasmania had advised him that there was no entitlement under the Act, on the basis that Mr Webb could have remained in his employment had he wanted to. What Mr Fahey neglected to tell the Commission, in his written statement on the day of the hearing, was that the same inspector had subsequently changed that advice, and had advised him that there may have been an entitlement. Evidence in support of this was provided by Workplace Standards Tasmania inspector, Mr Hurley. [53] The evidence of Mr Hurley, was generally consistent with the statement provided by Mr Fahey insofar as the original meetings and discussions in relation to this dispute are concerned. Notwithstanding the fact that the reason for the employer disputing the claim was advice initially provided by the Workplace Standards Tasmania inspector, the status of any advice given is purely that of an opinion only. The case must stand on its facts, and the Commission must decide accordingly. [54] Mr Fahey submitted that the fact that Mr Webb resigned shortly after having attained seven years of service, despite the fact that his parents in law had been ill for some time prior to that, shows that Mr Webb only continued in his employment for the purposes of obtaining a long service leave entitlement. The situation had existed prior to the expiry of seven years and therefore Mr Fahey questioned whether the resignation was in fact offered for the reasons given. [55] The reason given for the resignation was not, however, the fact of the ill health of Mrs Webb's parents (which, in any event, was worsening, with further surgical procedures anticipated for her father), but rather, for the reason that Mrs Webb had decided to return to Melbourne with their children and he did not want to be separated from his family. This situation had not been in existence prior to the attainment of seven years' service. This event did not occur until after Mrs Webb's father fell ill in January 2002 with kidney stones, for which he was operated on on 12 February 2002. Mr Webb proffered his resignation on 15 February 2002, giving one month's notice. The date of resignation was not upon the expiry of seven years, but nearly six months later. [56] A further fact which tells against a proposition that Mr Webb waited until he had served seven years and then contrived a reason for resignation, is that Mr and Mrs Webb had paid for the school books and uniforms for their four youngest children for their schooling in Tasmania. This is indicated in Mrs Webb's statement to Workplace Standards Tasmania.14 [57] Mr Fahey further submitted that a fact which supported the contention that Mr Webb's real reason for resigning was that he had attained seven years' of service was Mr Fahey's belief that Mr Webb had expressed interest in employment in a number of quarters prior to his resignation from Blockmack and that when he took up employment in Victoria he had no period out of work whatsoever. Mr Fahey did not provide any reasons or documents in support of these contentions. However, Mr Webb gave evidence, in response to a direct question from the Commission, that, at the time that he resigned, he did not have another job to go, and that once he gave notice he had some interviews arranged for when he returned to Victoria. There is nothing in the evidence which persuades me that Mr Webb's real reason for terminating his employment was either the attainment of seven years' service or the obtaining of alternative employment. On the contrary, the evidence supports the reasons given by Mr Webb, namely that his wife was returning to Melbourne and he had no alternative but to join her if he wished to maintain the family relationship. [58] The question to be determined is whether or not Mr Webb has an entitlement to payment for pro rata long service leave arising out of section 8(2)(b), that is, having completed more than seven years' service and having terminated his employment in circumstances provided for under section 8(3)(c) of the Long Service Leave Act 1976:
[59] The evidence is clear and not challenged that Mr Webb had completed nearly seven years and a half years' continuous service with Blockmack Pty Ltd. [60] I accept the reasons given by Mr Webb for his resignation, namely that his wife was returning to Melbourne, with their children, in order to be close to her elderly and infirm parents, and that he chose to return with her, rather than be separated from his family. I find that the reasons given by Mr Webb to his employer for his resignation were genuine, were reasonably held, and were the real and motivating reasons for the termination of his employment. [61] I do so because: [62] Mr Webb set those reasons out at the time of his resignation, in a letter to his employer. Mr and Mrs Webb's statements to Workplace Standards Tasmania and their sworn evidence before the Commission were consistent with the reasons given in Mr Webb's letter of resignation. [63] The reasons given are supported by the medical reports contained within the Workplace Standards Tasmania Report. [64] Although Mr Fahey has said that there is no independent, verifiable evidence provided in relation to the health of Mrs Webb's parents, there are five medical reports, including copies of hospital documents. I see no reason not to accept these reports, which support the evidence given by Mr and Mrs Webb, as an indication of the medical condition of Mrs Webb's parents. [65] It is clear from the evidence that, over the past two years or so, the health of Mr Webb's parents in law has deteriorated. I accept the evidence of Mrs Webb that the state of her parents' health was of such a nature as to cause her concern and that was the reason for her decision to return to Melbourne. In particular, Mrs Webb wanted to be with her parents in order to provide care and support; this is supported by the reports of Dr Brian Hepper and Dr James Choong. [66] The evidence was that Mr Webb gave four weeks notice on 15 February 2002, after being told by his wife that she was returning to Melbourne, with their children, with or without him. The timing of the resignation is consistent with the situation as described by Mr and Mrs Webb concerning the hospitalisation and treatment of Mrs Webb's father for kidney stones, as confirmed by the report of Dr Daniel Moon, Urology Registrar, Ballarat Health Services. [67] Mr Webb concluded that he would not be able to maintain his marriage with the Bass Strait between him and his wife and children. I accept that the real and motivating reason for Mr Webb's resignation was his desire to remain with his wife and children. Mr Webb was of the view that, due to the distance and the expenses involved in travel between Victoria and Tasmania, there was no alternative to resignation. The problems were exacerbated by Mrs Webb's fear of flying. [68] I find that the situation Mr Webb found himself in, that is, his wife leaving Tasmania and taking their children, either with or without him, was a pressing domestic necessity of such a nature as to justify the termination of his employment. This was not an ephemeral or passing problem, which would have been resolved after a short, or relatively short, period of time. I accept that it would have been extremely difficult, if not impossible, for the family relationships to be maintained if Mr Webb had continued to live and work in Tasmania while his family was resident in Victoria. He genuinely believed that he had no option but to terminate his employment, which he did, setting out the reasons for doing so. [69] Mr Webb is entitled to be with his family, and to take such steps as are necessary to preserve his marriage. He was put in a situation where he felt he had to choose between his family and his job. Mr Webb made a decision which was fundamental to the maintenance of the family unit. [70] The evidence is clear that Mr Webb genuinely believed that he had no alternative to terminating his employment due to a domestic situation of such a pressing nature as to justify the decision to resign. [71] I find that Mr Webb's decision to return to Melbourne in order to be with his family constitutes a domestic necessity within the meaning of section 8(3)(c) of the Act, and I decide accordingly. ORDER Given the foregoing, I hereby Order in accordance with the provisions of section 13(3) of the Long Service Leave Act 1976 that Blockmack Pty Ltd ACN 007 427 518, trading as Waverley Woollen Mills, Waverley Road, Waverley, Tasmania 7250, pay to former employee Kevin James Webb, 11 Eyre Close, Hoppers Crossing, Victoria 3029 the sum of Eight Thousand and Seventy Nine Dollars and Forty Cents being for pro rata long service leave entitlements, such sum to be paid to Mr Webb by close of business on Friday 8 November 2002.
P C Shelley Appearances: Date and place of hearing: 1 Exhibit WSA1 |