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T1651 - 22 December 1988

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

T.1651 of 1988 IN THE MATTER OF AN APPLICATION REFERRED BY THE SECRETARY FOR LABOUR PURSUANT TO SECTION 13(2) OF THE LONG SERVICE LEAVE ACT 1976 IN RELATION TO A DISPUTE BETWEEN MR. G. C. PINNER AND JAMES HARDIE BUILDING PRODUCTS PTY. LTD.
   
  RE: LONG SERVICE LEAVE PAYMENT
   
PRESIDENT 22 DECEMBER 1988
   

REASONS FOR DECISION

   
APPEARANCES:  
   
For Mr. G. C. Pinner (Claimant) - Mr K. O'Brien
   
For James Hardie Industries Pty. Ltd. - Mr G. Smith
   
DATE AND PLACE OF HEARING:  
   
15.12.88                       Hobart  

 

DECISION

At page 13 of my preliminary finding1 on this matter I indicated:

    "I will afford Mr Pinner an opportunity to give evidence before a reconvened hearing to be set down as soon as possible. In particular, I should like to hear from Mr Pinner:-

    (a) why he raised the matter with Mr Fleming;

    (b) what, if any, company officials he raised the question of his domestic situation with following the birth of his children;

    (c) why he did not give the company the true reasons for leaving;

    (d) why he did not afford the company an opportunity to consider his domestic position;

    (e) why his claim for pro-rata long service leave was delayed 19 months;

    (f) any other matters relevant to determination of this issue that have not already been dealt with.

    Should this offer to reconvene be declined, the matter will be decided on the evidence now before the Commission"

On 15 December the hearing was resumed to afford Mr Pinner the opportunity extended to him. His responses to the questions posed were:

Question (a): Why he raised the matter with Mr Fleming:

Response: "Well, I like day work too. And I just asked Mr Fleming if there was any day work going and he said no. So I just let it go for then, and then when my family started to come along I started to push it a little bit more."

Question (b): What, if any, company officials he raised the question of his domestic situation with following the birth of his children:

Response: "No, I never, because I think it was my own private business. As far as I could see there was nothing they could do for me and I had to work it out for myself as a good man would have done."

Question (c): Why did he not give the company the true reason for leaving:

Response: "Well, sort of what I have just said. It was my own private business, and they said ... and they didn't ask me was there anything worrying me at home or anything like that. They didn't even offer, so I just went.

Question (d): Why he did not afford the company an opportunity to consider his domestic position:

Response: "No, I never had no cause."

Question (e): Why his claim for pro rata long service leave was delayed 19 months:

Response: "Well, when I gave notice I was talking to Mr Hutton and he said: `You want to get pro rata long service leave', and I said, `Oh, yeah'. So I went and rang the union up to see if they could pick up on it for me and I was talking to Mr Leo Brown, and he wasn't real sure, and he said he would look into it for me, and he took a long time to get back to me.

I think we finished up ringing him up to find out what was going on and he wasn't real sure. But he said James Hardie would not pay it because we did not give a good domestic reason for leaving, and they said we weren't due for it. And he said he was going to look into it for me."

After carefully considering all that was put by Mr O'Brien, Mr Smith and the two witnesses, Messrs Hutton for the company and Mr Pinner on his own behalf, I must now decide whether Mr Pinner is entitled to succeed on his claim for pro rata long service leave. The claim itself stands or falls on whether or not Mr Pinner terminated his services for domestic or other pressing necessity.

It is clear from the full verbatim transcript record and from the foregoing selected extracts from Mr Pinner's evidence that even if his domestic problems were beginning to, or in fact had already overtaken him and his wife, Mr Pinner was in all probability his own worst enemy.

To succeed in a claim of this kind I am of the opinion that the evidence should point overwhelmingly to the fact that the claimant either had, or genuinely believed that he had no option but to terminate his employment due to a domestic situation of such a pressing nature as to justify that course of action. I do not believe (nor do I determine in any absolute sense, however) that an ephemeral or passing problem relating to the raising of young children necessarily constitutes a domestic problem sufficient to cause an employee to abandon his employment. This could be the case notwithstanding the fact that a problem might be somewhat lessened if that course was taken.

Frequently cases involving lengthy illnesses of children, forced separation of one partner due to locality, the possibility of a marriage break-up, lack of education facilities for children and significant matters of that kind have been regarded as constituting domestic situations sufficient to justify a claim for pro rata long service leave.

However frustrating, nerve-racking and no doubt inconvenient Mr Pinner's problems might have been due to the ill health of his second child or his wife, or a combination of all factors, his obvious reluctance to give details of his difficulties to his employer, and to a lesser extent to this Commission, is, I believe, fatal to his case.

Mr Pinner gave the impression of being taciturn regarding his personal affairs. That of course is his prerogative and is not intended as a personal criticism. But if that be his inclination, then he cannot expect others, including his employer and this Commission to read his mind and ask questions of him, the answers to which he should have volunteered in the first place.

During proceedings before this Commission, whether by intention or oversight, he did not mention his wife's illness and yet the file discloses that in her case psychiatric treatment was recommended although not administered. However sensitive the earlier history might have been the Commission can only make a judgment on the actual evidence before it.

Mr Pinner may have had a major domestic problem. But there was too little evidence before the Commission to make a judgment as to the measure of it. In any case, thankfully that problem no longer exists, or it would appear so. But because it has been his choice to face those problems alone - perhaps for the most commendable reasons - his employer was not invited to help him. It was readily admitted by Mr Smith that there was no guarantee that help would have been forthcoming. Nevertheless I believe Mr Smith's point is valid. He submitted that the employer, being totally unaware of Mr Pinner's problems and his reason for leaving, should not now be faced with a claim for pro rata long service leave that he may, in other circumstances, have been able to avoid.

I am of the opinion that despite Mr O'Brien's efforts to draw him out, Mr Pinner has been unable to put before the Commission sufficient detailed reasons to persuade the Commission to grant the application. In coming to this conclusion I make it abundantly clear that I do not question Mr Pinner's integrity. I question only his motivation in not presenting all of the facts before the Commission in order that his alleged domestic problems might have been fully considered, weighed and ruled upon.

I have a great deal of sympathy for Mr Pinner. He was undoubtedly an entirely satisfactory employee. But decisions of this Commission cannot be made on mere sentiment. On balance I find that Mr Pinner has not persuaded me that his domestic situation at the time of his termination was such that a reasonable man would have considered no other logical course was open to him.

Having so found it follows that I accept Mr Smith's argument that a reasonable man, before taking a decision to resign, would have made his employer aware of his domestic difficulties in order to afford the employer a reasonable opportunity to make other arrangements for him.

Should Mr Pinner be minded to test this decision on appeal, I will restate the reasons why his claim has failed. They are:

(1) primarily, because there was insufficient detailed evidence before the Commission to justify a finding that his domestic problem was of such a pressing nature that a reasonable man would have considered termination the only alternative; and

(2) that if his domestic situation was of such a pressing nature, a reasonable man would have afforded his employer an opportunity to make other arrangements for him. And he most certainly should have given his employer the true reason for resigning instead of leaving the employer with the impression that he was simply going to a better job.

The claim is dismissed.

 

L A Koerbin
PRESIDENT

1 1/12/88