IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This matter concerns the reference of a dispute pursuant to Section 13(2) of the Long Service Leave Act 1976 by the Secretary, Department of Labour and Industry, to the Commission.

The dispute is between Buckingham Bowls Club and Mr Anthony Bond Chappel, a former greenkeeper who terminated is own services on medical grounds after completing more than seven (7) years continuous service as an employee.

The employer contests the reasons given by the employee and claims other factors were the real cause of his resignation.

Following investigation of the circumstances of the dispute the Secretary submitted a report of his findings to the President of the Commission, who then referred the matter to me pursuant to Section 15(1)(c) of the Industrial Relations Act 1984, for hearing and determination.

When the matter was brought on for hearing the Secretary's report was presented and read into transcript.

The essential facts contained in the report are uncontested.

The Commission was advised that when Mr Chappel was seen at the Department of Labour and Industry on 30 June 1988, he produced a letter from his medical practitioner dated 30 March 19088 which read as follows:

"To whom it may concern
re: Mr Anthony Chappel

In 1968 Mr Chappel suffered a sever fracture of his right ankle.

He now has a considerable degree off arthritis in that ankle, and finds his job as a greenkeeper is causing increased pain.

I feel he should look around for lighter work which does not involve being on his feet all day long.

Yours faithfully
Margaret A Smith."

Mr Chappel told the interviewing officer from the Department of Labour and Industry that in recent years he had found difficulty in coping with his work because of bouts of pain in his right ankle. Pain had become more frequent and he was taking pain killers to get him through the day.

He had been seeing Dr Smith regularly for years to be treated for a blood pressure problem.

He also informed the interviewing officer that approximately 12 months prior to termination during one of these visits he had complained to the doctor about the pain in his ankle. She confirmed that the cause was arthritis and prescribed pain killers.

From that time the pain became worse, particularly in cold weather, or if there was a change in the weather.

While visiting his doctor in March 1988 she had ordered X-Rays to be taken which resulted in the advice given in the letter.

He said that having received the advice and bearing in mind the fact that the condition would not get any better, he decided to resign. He gave one months notice of his intention to resign.

During that month he trained a volunteer greenkeeper and assisted in the completion of renovations to the greens.

He said that since his termination he had unsuccessfully sought suitable alternative work.

On 17 August 1988 an investigating officer from the Department of Labour and Industry saw Mr Gandy, Secretary of the Club and put to him Mr Chappel's claim.

Mr Gandy said that the Club Committee had rejected the claim because it was believed that Mr Chappel did not terminate his services for the reasons given.

He pointed out that Mr Chappel had only taken one day's sick leave due to the ankle problem and that was in his last week of service.

He said the Committee had seen the Doctor's report but did not set much store by it.

The club secretary said that about 3 years prior to his termination Mr Chappel had commenced building a house at Diana's Basin and that the house was being built on a large property belong to a relative of Mr Chappel.

It was considered that now Mr Chappel's family was off his hands and that the house had been completed it was Mr Chappel's intention to terminate his employment in Hobart and move into the house and that this was the real reason for termination.

He knew Mr Chappel had a band ankle and that it bothered him at time but it was not serious enough to make him take time off work. He said the Club Committee believed the claim should be rejected.

Mr Chappel was subsequently reinterviewed and confirmed that his wife had owned a small block at Diana's Basin for years. It had been part of a larger block which was owned by her Aunt.

He said that some time ago he sold his home in Hobart and moved to a rented home.

The money from the sale went into building a holiday home which would eventually become a retirement home.

Mr Chappel told the officer that acting on his doctor's advice he terminated his employment and then registered with C.E.S. for suitable alternative employment, but nothing eventuated. He realised that there was little prospect of finding work and so decided to move from Hobart to the house at Diana's Basin.

He said that he was registered with the Kings Meadows C.E.S, the appropriate office, but had received no offers of employment.

It was further stated to the departmental officer that the fact the advice received from his doctor and the completion of the home at Diana's Basin occurred around the same time was coincidental, and maintained his reasons for termination were based on the advice given by his doctor.

When these facts were later put to Mr Gandy he said that he would raise the matter again at the next Club Committee meeting.

And when interviewed again on 21 September 1988 he said that the decision of the Committee was that Mr Chappel should submit himself for examination by a doctor of the Club's choice.

Even though Mr Chappel agreed to make available the x-rays of his right ankle for inspection by a medical practitioner of the Club's choice, his offer was never taken up.

Section 8 of the Long Service Leave Act, 1976, provides a pro-rata entitlement to long service leave (payment) in certain circumstances and is expressed as follows:-

"(2)   Subject to subsection (4), the period of long service leave to which an employee is entitled under this Act is -

(a) ...........................

(b) 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', continuous employment 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.

(3)   Subsection (2) (b) applies to -

(a) an employee who attains the age for retirement;

(b) an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment;

(c) 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; and

(d) an employee whose employment is terminated by his employer for any reason other than the serious or wilful misconduct of the employee."

Subsection (4) is not relevant as it deals with periods of employment occurring before the commencement of the Long Service Leave Act 1964.

On the evidence before me I am satisfied that Mr Chappel demonstrated that he suffered an incapacity and that fact, supported by medical opinion, was the reason he terminated his services with Buckingham Bowls Club after completing more than seven (7) years continuous service.

It follows that I find his circumstances meet the requirements of Section 8(2)(b) and 8(3)(c) of the Act and that he is therefore eligible for pro-rata payment.

The contra argument advanced against the claim by Buckingham Bowls Club that it did not set much store upon a medical practitioner's report, in the absence of any other expert opinion, is not persuasive.

And whilst there is no doubt upon the evidence that the employee concerned had a long term objective of eventually living in what has been described as a holiday home in another part of the State, and in fact he did relocate to such destination following his resignation, I am not persuaded that such an understandable desire precipitated his resignation.

Mr Chappel gave sworn evidence in relation to this question, and presented as an honest and truthful person. He made it quite clear that he would not have terminated his services at the time that he did, were it not for the fact of his medical condition and the advice of his medical practitioner.

Suggestions to the contrary by his employer were hearsay, and no witnesses were called.

Mr Sherry for the employee referred to a number of case references to support his argument that if I was of the view that other contributing factors caused Mr Chappel to decide to resign, then I should still find in his favour that incapacity was the principal deciding factor which led to his decision to resign.

In view of my initial finding it is unnecessary for me to consider the secondary argument.

The calculation of Mr Chappel's entitlement is as follows:-

In accordance with the provisions of Section 13(3) of the Act I hereby Order Buckingham Bowls Club to pay to former employee Mr Anthony Bond Chapel the sum of $2,402.95 in respect to his pro-rata long service leave entitlement.