T1805
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
The undisputed background to this matter is that Mrs G Everett (the Employee) was employed as a casual housemaid by GFM Nominees Pty Ltd trading as Elimatta Motor Inn (Elimatta) Devonport. Her employment commenced on 27 November 1979 and ceased on 8 October 1987, a period in excess of seven (7) years and ten (10) months. Following her termination, the Employee made a claim against the Elimatta for pro rata long service leave. The claim was refused. The basis of the claim was that the Employee terminated her employment because of incapacity of such a nature as to justify a payment under Section 8 of the Long Service Leave Act 1976 (the Act). Section 8 of the Act provides that pro rata long service leave shall be paid in the following circumstances:
The Employee's evidence on 20 February 1989, was that for some nine (9) months before her termination she had experienced pain in her left wrist. Using a vacuum cleaner and mopping floors had caused or aggravated that condition. She has been receiving treatment for her left wrist from a medical practitioner since July 1987. The Employee maintained that she advised a Mrs Brown, an office employee at the Elimatta, of her problem during the latter months of her employment. However, the only solution recommended was a reduction in working hours. Following her termination the employee obtained a number of medical certificates to support her claim. Two of those certificates dated 10 October 1987 and 30 September 1988, apart from confirming the Employee suffered from a wrist conditions are not helpful in resolving this matter. However, two others are relevant and read as follows:
and
Although the date on the second of the above quoted certificates is 25 November 1987, it was agreed by all parties that it should read 25 November 1988. One certificate clearly confirms that the Employee was suffering from a problem with her left wrist during her employment at the Elimatta. The second contains a clear opinion of the medical practitioner that the employee is permanently unfit to perform two important aspect of her normal work at that establishment. Mr Miller in opposing the claim maintained that the Employee had resigned to take another position and that was the real reason for her termination. He also submitted that no approach had been made to him, by the Employee, concerning her medical condition. If she had mad an approach, he would have offered her lighter work in the kitchen. Mr Miller also complained that normal courtesies were not extended by the Employee at the time of her termination. In arriving at a decision in this matter I must attach considerable weight to the medical certificates and in particular those quoted earlier in this decision. I have already detailed the important conclusions that can be drawn from them. The evidence of the Employee that she made known her condition to Mrs Brown prior to her resignation (thus giving management the opportunity to consider alternative employment) is also significant. In the light of the above I conclude that the Employee terminated her employment on account of incapacity and therefore is entitled to a payment in accordance with Section 8(2)(b) of the Act. An order reflecting this decision is attached.
J. G. King | ||||||||||||||||||||||||||||||||||