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TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.15 referral of long service leave dispute

Kim Rose Smith
(T13002 of 2007)

and

D J Wilkes t/a Wilkes Supermarket

 

DEPUTY PRESIDENT P C SHELLEY

HOBART, 16 November 2007

Long service leave dispute - domestic necessity - order issued

REASONS FOR DECISION

[1] This application was made 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 long service leave.

[2] The dispute was between Kim Rose Smith (the employee) and D J Wilkes trading as Wilkes Supermarket (the employer).

[3] The matter came on for hearing on 14 August 2007 at which time Mr G Thomas appeared for the Minister for Justice and Workplace Relations, Workplace Standards, Tasmania and Mr J Graham appeared on behalf of the employer. The employee did not attend the hearing, having advised that she was not in a financial position to travel from Queensland to attend, and was not represented.

[4] During the course of the hearing it was decided that the employee would be provided with a copy of transcript and all other documents and would be given until 14 September 2007 to provide a statutory declaration with regard to certain matters, and to respond to submissions made at the hearing. Following that, the employer would be given the opportunity to respond. It was also agreed that Workplace Standards would obtain some additional information, which would be provided to the Commission and to the parties.

[5] A sworn statement was provided by the applicant and was received by the Commission on 12 September 2007. On 3 September 2007 the Commission received the further information from Workplace Standards, and on 18 October 2007 a response was provided by Mr Graham, on behalf of the employer.

BACKGROUND

[6] Mrs Kim Smith was employed by DJ Wilkes Pty from 28 May 1997 until 24 November 2006. She tendered her resignation verbally on 20 October 2006, giving five weeks' notice. This was confirmed in writing on 17 November 2006. At the time her employment ceased she was the manager of the fruit and vegetables section in Wilkes Supermarket, Beaconsfield.

[7] Mrs Smith says that the reason she resigned from employment was to move to Queensland in order to be with her husband, who had accepted a position in Mackay for health-related reasons. She claims that she is entitled to a pro rata payment of long service leave, pursuant to s8(2)(b) of the Act, which provides:

"in the case of an employee to whom this paragraph applies by virtue of subsection 3 who has completed 7 years' , but has not completed 15 years' of continuous service with his employer such period of long service leave as bears the same proportion to 13 weeks as the total period of the employee's continuous employment with his employer bears to 15 years."

[8] Mrs Smith claims the entitlement arises because it is a domestic necessity that she move to Queensland to be with her husband. Section 8(3)(b) provides:

"an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify termination of the employment,..."

[9] The employer disputes the entitlement to pro rata long service leave, on the basis that, they say, the circumstances do not meet the criteria of domestic necessity because it was a family decision on the part of the Smiths to move to Queensland and the decision was based on the desire for a change of lifestyle.

[10] A point at issue was a differing account of the timing of the job offer to Mr Smith relative to the date that Mrs Smith handed in her notice. The employer claimed that the notice predated the offer of employment, whereas the employee's version was that she did not hand in her notice until after her husband had received the offer of employment.

[11] The amount claimed is $4,768.64.

The Evidence

Workplace Standards Report

[12] A report prepared by Workplace Standards, Tasmania, was tendered as an exhibit. Contained within the report was a statement Mrs Smith provided to Workplace Standards on 8 December 2006, in which she said inter alia:

"...My husband, Michael, and I have been married for 24 years and we have 2 children, Corey aged 23 and Blair aged 20.

Over about the last 3 years my husband, aged 49, has worked in a self employed basis in subdivision development. His work is hard manual labour requiring rendering and stormwater pipe work and other work not able to be done by machinery such as backhoes. He was typically working 10 hours per day. ... My husband has had back complaints off and on for about 5-6 years with the complaints being more regular over the last 3 years. The back complaints require attendance at his local GP who provides medication for the back pain. During a 3-month period from about July to September 2006, Michael had 2 back injuries requiring up to a week off work on each occasion. Michael's GP prescribed medication for the back pain during this time.

After these 2 incidents I encouraged my husband to look for alternative work, as I was concerned about his future health if he continued to do hard labouring work. Our son who has lived in Mackay since July encouraged my husband to look on the internet in the Mackay region as he could see a lot of development in the area. My husband successfully applied for a position of supervisor with a large civil construction company. I was very apprehensive about the move as it was a big decision for the family to relocate to Queensland but I felt the move was necessary if my husband was going to be able to have a full working life. I did not wish to leave my current employment at Wilkes's supermarket but once Michael had taken the new position staying in Tasmania was no longer an option if the family was to stay together. Once my husband was offered the position I immediately handed in my resignation to my employer, David Wilkes. My husband commenced employment in early November in Mackay, however I stayed in Beaconsfield to work my 5 weeks notice out. I did make enquiries about my long service leave with David Wilkes during my notice period however David said it was a grey area and therefore he was not required to pay any portion.

While working my notice out I sent my CV to an employment agency in Mackay and I was contacted on 23 November by the Agency regarding a position at an IGA supermarket in Mackay.

..."1

[13] At Attachment 3 of Exhibit WS1 is a copy of a letter to Mr Smith from BMD, dated 1 November 2006, confirming an offer of employment as Foreman, with a start date of 16 November 2006.

[14] Mr Damian John Bingley, Inspector, Workplace Standards, prepared a report in which he outlined his dealings with the employer and the employee concerning the claim. In relation to the employer's contention that the reason for the move to Queensland was for a "sea change", he reported that:

"On 6 March 2007 I spoke by telephone to Mrs Kim Smith and put to her concerns raised by David Wilkes in his interview with me on 3 January 2007. In relation to the suggestion that Mr and Mrs Smith had moved to Mackay for a sea change, Mrs Smith restated her position that it was the health of her husband at stake, which necessitated the change from labouring to a foreman in a supervisory role. Once Mr Smith had obtained the position Mrs Smith said she handed her notice in because the idea of living apart from her husband for long periods of time was not a consideration, as Mrs Smith believed that a marriage cannot work if husband and wife are living thousands of kilometres apart...

...

...Mrs Smith stated at the 20 October meeting with David Wilkes, Michael had said that he had been verbally offered a position in Queensland and he had accepted that position. Mrs Smith was adamant about this detail and was surprised Mr Wilkes did not recall this detail. Mrs Smith said Michael's offer and acceptance of employment had occurred about a week prior to the 20 October and the paperwork dated 1 November came through early in November...."2

Mr Wilkes

[15] Mr John Wilkes gave oral evidence before the Commission, which was not subject to cross-examination due to the fact that Mrs Smith was not represented. Mr Wilkes told the Commission that Mrs Smith was continually employed between 1997 and 2006. He said that she gave notice that she wished to resign on 20 October 2006.

"Well, actually, her husband came in and he was stating about - about the son had been trying to get them to go up to Queensland, Mackay, and that he was looking for a job up there and the son was looking up there too, and they were on the internet, so there was something going on the internet, but he did - he didn't have anything going at that stage. He wouldn't know anything about anything, he said, because he was waiting on some - some, say, from somebody that night, or the next day...

...

Yes, well, that night or the next day, so I could only go on what he - he stated, so, basically, Kim handed in her resignation and said that she'd be leaving roughly at the end of November...

Okay. Did she say why she was leaving?---Because her husband - they were going up to Queensland because the son had been trying to get them to go up there.

So was there any mention, at the time, of the reason for the husband going to Queensland- - -?---No.

--- for work?---No

Not at all?---Nothing about his back."3

[16] Mr Wilkes said that he was not made aware of any reasons or any other motivation for the termination of employment other than a desire for a change of lifestyle and that her son was in Mackay and that there were job opportunities because of the mining and construction industries.

Mrs Smith

[17] Mrs Smith provided a sworn statement to the Commission, dated 10 September 2007. It said:

"On 20th October 2006 around lunch time Michael arrived at my work place and came over to see David with me. I told David that Michael had taken a job in Mackay Queensland and that I would be leaving in 5 weeks time (as per the work place agreement) David then shock (sic) Michael's hand and wished him all the best. Then asked him what he would be doing (work wise).

David said he did not know when I was leaving but on the same day (20 October 2006) he asked another employee if she would like a full time position to replace me.

Michael current position does not require him to do any physical work, as he was previously working for him self he had to do physical work which caused back problems. I have Doctors phone number if you require, for verbal confirmation on back problem.

I could not see our marriage surviving if Michael lived in Mackay Queensland and I was living in Beaconsfield Tasmania."

Further documentary evidence

[18] As agreed during the hearing, Workplace Standards requested that Mr Smith's new employer, BMD Constructions, supply a letter to them, for provision to the Commission, setting out the timing of the job offer they made to Mr Smith. The letter, dated 27 August 2007, and signed by David Stanworth, Area Manager, reads as follows:

"...

I refer to the above matter concerning the employment of Michael Smith with BMD Constructions. A letter of offer was issued on 1st November 2006 as a follow up to an earlier conversation on 19th October 2006. During this conversation I gave Michael the undertaking that we would employ him on a full time basis commencing on 16th November 2006 allowing him time to organise his affairs before moving to Mackay.

..."

Authorities

[19] Mr Thomas referred the Commission to some authorities: Andrew Mark Thomas and the Examiner Newspaper4 (The Examiner), Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Australian Weaving Mills5 (Australian Weaving Mills) and Computer Sciences of Aust. Pty Ltd v Leslie6 (Computer Sciences).

[20] Mr Thomas said that the questions posed in the Computer Sciences case were the questions that had been asked by the Commission in a number of cases going to domestic necessity:

"...the present case should be resolved, in our view, by asking the following questions. (1) Was the reason claimed for termination one which fell within the section? (2) Was such reason genuinely held by the worker and not simply colourable or a rationalisation? (3) Although the reason claimed may not be the sole ground which actuated the worker in his decision to terminate, was it the real or motivating reason? (4) Was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate his employment?..."7

Submission

[21] Mr Graham, for the employer, submitted that Mrs Smith did not give notice because of domestic necessity. It was claimed that Mr Smith had a back injury due to the nature of his work, but no evidence was presented in support of that. Mr Graham questioned the existence of the injury and the necessity that Mr Smith seek alternative employment elsewhere. There could have been other alternatives open to Mr Smith, which would not have involved a move to Queensland. Mrs Smith had not discussed any alternatives with her employer and had not discussed her reasons for leaving with him. It was the employer's contention that, at the time Mrs Smith tendered her resignation, her husband did not yet have a job offer.

[22] In relation to the tests outlined in Computer Sciences, Mr Graham submitted that, whilst the reason given by Mrs Smith for the termination of her employment was a reason that fell within the Act, namely, domestic necessity, there was not a case of domestic necessity in her circumstances. Their son had moved to Queensland and there was an opportunity for the family to relocate there. In Mrs Smith's opinion, there was a genuine reason for going there, which was to follow her husband, who had a back injury, however there was no evidence to support that. The employer did not believe that was the real or motivating reason; the motivating reason was for a change in lifestyle, borne out by the fact that Mr Smith did not have a job to go to at the time Mrs Smith resigned on 20 October 2006. There is difficulty in understanding what the pressing need was for her to make such a monumental decision.

[23] In response to the provision of the statutory declaration and the letter from Mr Smith's employers, Mr Graham made further written submissions, received by the Commission on 18 October 2007. The response restated a number of arguments previously outlined on the day of the hearing. In response to the additional information that was provided to Mr Graham, he submitted that, because Mr Smith received a verbal offer of employment on 19 October and Mrs Smith gave her notice on 20 October, it seemed as though they were merely waiting for a job opportunity in Queensland before Mrs Smith terminated her employment.

[24] Mr Graham said that the letter of appointment from BMD showed that Mr Smith would be working 10 hour days, similar to the hours he had worked in Tasmania and she had failed to state whether the work in Mackay had relieved her husband's back pain. No medical evidence was presented in support of the claims of back problems, and the provision of a doctor's telephone number was not evidence.

[25] According to Mr Graham, there were no compelling reasons for Mrs Smith to terminate her employment, other than her husband finding a position in Mackay close to where their son lives and the Commission should therefore dismiss the claim.

FINDINGS

[26] The period of Mrs Smith's employment with the respondent employer is not in dispute. The years of service amount to approximately nine and a half years. Section 8(2)(a) of the Act provides for an entitlement to 13 weeks' long service leave after at least 15 years of continuous employment. In the case of an employee who has completed at least seven years' service there is an entitlement to pro rata long service leave in certain circumstances, which are set out in s.8(3). In this case the employee is relying upon s8(3)(c), which provides a pro rata entitlement for:

"an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment;..."

[27] It is clear that the section is concerned with the employee, that is, the employee's incapacity or domestic circumstances and how it affects the employee's ability or capacity to continue in their employment. In my opinion, the enquiry should not be directed at whether or not Mr Smith had a reason for seeking employment elsewhere than in Tasmania, but at whether or not the fact of him having done so created a domestic necessity for Mrs Smith to terminate her employment.

[28] The facts as established through the evidence are that Mr Smith was offered employment as a foreman by BMD Constructions, a position based in Mackay, Queensland. The evidence provided by way of a letter from that company was that on 19 October 2006 he was given an undertaking that he would be employed, commencing on 16 November 2006.

[29] The evidence, by way of reports provided to Workplace Standards, Mr Wilkes's evidence in this Commission, and Mrs Smith's sworn statement, is that Mrs Smith gave verbal notice on 20 October 2006, the day after Mr Smith received and accepted a verbal offer of employment in Queensland.

[30] There is no requirement that notice be given in writing. The evidence shows that, for whatever reason, the employer attached some importance to a written resignation, which Mrs Smith provided on 17 November 2006.

"I, Kim Smith, hereby resign from my fulltime position as Manager of the fruit and veg department at D.J Wilkes Beaconsfield Festival Supermarket. I am requesting pro-rata payment of my long service leave on the grounds of domestic necessity due to my husband taking up a fulltime position interstate. This letter is to confirm our conversation on the 20 October 2006, when I gave notice of my intention to cease my employment on the 24 November 2006."

[31] Mr Graham told the Commission that five weeks' notice was given on 20 October, but during the hearing Mr Wilkes said that the first time he was given a firm finish date was 17 November, one week before Mrs Smith finished. Mrs Smith, as her statement to Workplace Standards showed, was of the view that she was required to give five weeks' notice. During the hearing Mr Wilkes also expressed that view. In fact, the requirement in the D.J. Wilkes Pty Ltd Employee Collective Agreement 2006 is that "more than four weeks" notice be given. What is clear is that both the employer and the employee were of the belief that five weeks notice was required and it was exactly five weeks between 20 October when Mrs Smith gave notice and 24 November when she finished work.

[32] During the hearing, and earlier in his interviews with Workplace Standards, the employer, Mr Wilkes, was of the view that Mr Smith had not yet been offered the job when Mrs Smith resigned on 20 October. During the hearing Mr Graham said that Mr Smith was not offered the job until 1 November. He said that "the core of our argument" was that there was not a domestic necessity because, at the time of the giving of the notice, Mr Smith had not yet had an offer of employment.

[33] As this was a major point of difference between the parties it was agreed that Mrs Smith provide a statutory declaration in relation to the 20 October 2006 meeting and that BMD Constructions be asked to provide details regarding the date of the job offer. As a result of information provided, I am satisfied that Mr Smith was offered the position with BMD Constructions on 19 October 2006.

[34] I find, on the evidence, that Mr Smith obtained employment in Queensland on 19 October 2006. I also find that Mrs Smith gave the (assumed) requirement of five weeks notice on 20 October 2006 after her husband had taken the job. The logical conclusion is that what transpired at the meeting on 20 October is what was described by Mrs Smith, namely, that she told her employer that her husband had work in Queensland and that she would be leaving in five weeks' time.

[35] The basic facts of the situation are: Mr and Mrs Smith had been married for 24 years; Mr Smith was moving to Queensland to take up another job; Mrs Smith resigned from her employment in order to go to Queensland to be with her husband.

[36] The question to be determined is, was the fact of her husband accepting employment in Queensland a domestic necessity of such a nature as to warrant Mrs Smith terminating her employment in Tasmania?

[37] In the matter of The Examiner, Watling C found that, in the case of an employee who resided in Launceston and whose wife had obtained a senior position in Hobart,

"...there is no doubt that the applicant's wife had made a voluntary decision within the family structure to advance her career by accepting a senior position with a company in Hobart, but that does not disentitle the applicant to pro rata long service leave if the reason for terminating his employment -

1. falls within the meaning of section 8(3(c) of the Act; and

2. was genuinely held by him; and

3. was the real or motivating reason."8

[38] Although there are some differences in the circumstances of the present case, including the fact that the employee tried unsuccessfully to transfer to the Hobart branch of The Examiner's operations and he waited for 11 months before resigning, the heart of the matter is the same, namely that the employee's spouse had relocated to a locality which affected the ability of the partners to cohabit. Commissioner Watling said:

"I think any reasonable person finding themselves in the circumstances that the applicant found himself would have felt compelled to terminate his employment..."

[39] I agree with that observation; in my opinion any reasonable person would, in circumstances where their spouse was moving elsewhere, resign from their employment in order to maintain the marriage relationship.

[40] In the Australian Weaving Mills case the employee resigned from his employment, which required him to work a permanent night shift, so that he could take up a part time position with another company. The permanent night work was adversely affecting his relationship with his family. The employer contended that the real reason for the resignation was that the employee was seeking a "sea change". In that case, the Commission as currently constituted found that the reasons given by the employee amounted to a domestic necessity of such a nature as to justify the termination of the employment. In that case I rejected -

"the argument that the real and motivating reason for the termination of the employment was a desire for a "sea change". I do, however, accept that the employee was seeking a change in his working life, specifically, a change in working hours, in order to accommodate his family circumstances."9

[41] In the instant case, I find that the real and motivating reason for the termination of employment was so that Mrs Smith could continue living with her husband. The fact that there may have been other attractions, such as one of their sons living in Mackay, does not detract from the real reason for the termination. The real and motivating reason does not need to be the sole reason.

[42] I have already stated that the reasons Mr Mackay chose to accept employment in Mackay and to relocate there are not strictly relevant. It is the motivation of the employee with which the Act is concerned. However, I do note that, contrary to the employer's contention that there was no evidence to support the existence of Mr Smith's back injury and the beneficial effect of more sedentary work, there is in fact evidence going to that in the form of Mrs Smith's statement to Workplace Standards and her sworn statement before a Justice of the Peace. I accept that there is no medical evidence. Nor was there evidence before me to show that Mr Smith did not have a bad back.

[43] I find that Mrs Smith terminated her employment on account of domestic necessity of such a nature as to justify the termination of the employment

ORDER

I hereby Order, pursuant to s.13(3) of the Long Service leave Act 1976, in full and final settlement of the matter referred to in T13002 of 2007 that D J Wilkes Pty Ltd trading as Wilkes Supermarket pay to Kim Rose Smith the sum of Four Thousand Seven Hundred and Sixty Eight Dollars and Sixty Four Cents by close of business on 7 December 2007.

 

P C Shelley
DEPUTY PRESIDENT

Appearances:
Mr G Thomas for Workplace Standards Tas
Mr J Graham for D J Wilkes t/a Wilkes Supermarket

Date and place of hearing:
2007
August 14
Launceston

1 Exhibit WS1/1
2 Exhibit WS1
3 Transcript PN295-303
4 T5390 of 1995, Andrew Mark Thomas and The Examiner Newspaper Pty Ltd re long service leave, Watling C, 10/3/1995
5 T11016 of 2003, AFMEPKIU and Australian Weaving Mills re long service leave, Shelley C, 5/4/04
6 Computer Sciences of Aust. Pty Ltd v Leslie, Industrial Commission of New South Wales, Watson, Bauer and Glynn JJ, 2/11/1983, (1983 6 IR)
7 Computer Sciences of Aust. Pty Ltd v Leslie, P. 191
8 T5390 of 1995, P2
9 T11016 of 2003, PN72