T1839
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This matter relates to a dispute regarding entitlement or otherwise to pro rata long service leave. The disputants are a Mr Gary Harris and the North West Regional Water Supply Authority (NWRWSA). Having completed seven years' employment with the Authority, Mr Harris claimed that he resigned his position on doctor's advice due to the adverse effect shift work was having on his health. For that reason he is of the opinion that he is entitled to payment for pro rata long service leave in accordance with the provisions of Section 7(2)(ii) of the State Employees (Long Service Leave) Act 1950. The NWRWSA disputes this entitlement. The matter therefore falls to the Commission to decide. The facts as described were that Mr Harris has been employed as a Waterworks Operator by the NWRWSA since 30 September 1981. On 3 October 1988 he tendered his written resignation effective from the close of duty on 14 October that year. His actual hand-written resignation was couched in the following terms:
On 10 October 1988, a well-composed, typewritten letter was received by the Authority requesting payment for pro rata long service leave. Attached to this was a doctor's certificate dated 29 September 1989, stating that Mr Harris was -
No time off was given. The doctor's certificate was not submitted with the resignation tendered by Mr Harris. It was, instead, included with his application for pro rata long service leave and transmitted some 4 days before his notice expired, but 10 days or thereabouts following his hand-written resignation. There was evidence that Mr Harris had applied for a change to a day work position with the Authority in July 1987 but had been unsuccessful under the merit principle. At that time no mention was made of illness being a motivating factor. Instead it was said he was bored with shift work. In December 1987 another day work vacancy arose with the same employer. Mr Harris was not an applicant for the job. It was said that he did not apply for that job for two reasons. First, that it would have involved travelling an extra 35 kilometres either per day or per week [not stated], and second, that it was not related to his trade of electrician. [Note: His substantive job was waterworks operator. Although any electrical work required was done by Mr Harris as part of his duties, his main function involved other work.] Mr O'Halloran, for Mr Harris, submitted that his client had many times requested day work but on each occasion was told he was employed as a shift worker and no day work was available. This assertion was denied by Mr Dance, the Assistant Supervisor, during his evidence. In his 7 years' employment Mr Harris had taken some 46 working days sick leave. Perusal of the documentation available and presented during proceedings demonstrated that the reasons for most absences were those I would regard generally as "standard", namely "flu", "virus" and similar maladies. It was not until 28 March 1988 [received by the Authority on 12 April 1988] when he was given 3 days off work for an "anxiety state" that Mr Harris's record of sickness appears to demonstrate any real departure from the normal type of complaints experienced by workers in the course of their employment. On 29 September 1988 he was given a certificate by his doctor recommending a change in hours but he was not given any time off as a consequence of that. By remarkable coincidence the 29 September marked the exact seventh anniversary of his service with the NWRWSA. From that date onwards prima facie he was eligible for pro rata long service leave, subject of course to satisfying the necessary conditions set out in the Act. On the next day Mr Harris said he was offered a job by Hawkridge Meats as an electrician, and took up his new position on 17 October - i.e. on the Monday following his termination. I do not consider it necessary to recite in detail all of the arguments presented for or against the successes of this application. I am of the opinion that the circumstances of the case are such as to leave in one's mind a serious element of doubt as to the bona fides of the claim itself. I accept without question that Mr Harris was not happy with shift work. Few shift workers are: But I do not necessarily accept that his health was so badly affected by the need to work shift work that to have continued working for the Authority on day or shift work would have been unwise. I have come to this conclusion, not because I would presume to make a medical judgment, but largely because his doctor recommended a change in hours, not necessarily a change in jobs. Mr Harris was in possession of his doctor's recommendation when he tendered his resignation to the Authority, but did not make mention of that fact in his letter setting out his intention to resign. From the evidence presented before me, I tend to believe that he consciously held back on tendering this certificate until making application for pro rata long service leave. The Authority, for its part, wrote to Mr Harris on 12 October stating that had he made the appropriate approach day work would have been made available "and continuity of work would have been assured". Apart from the fact that technically, one supposes, anyone who is permitted to retire on account of sickness is, subject to satisfying the minimum qualifying period, entitled prima facie to payment in lieu of long service leave, I must agree with the Authority's view as presented by Mr Jarman, namely that "the employer was not given an opportunity to remedy the situation". Mr Jarman also stated, inter alia:
I make no finding on this latter assertion. Nevertheless I am not satisfied that Mr O'Halloran has fully discharged the onus put upon his client, Mr Harris, to justify his case. Quite apart from the fact that he did not ask for day work or that he did not indicate that he had received medical advice to the effect that he needed a change in hours, I find it difficult to accept that Mr Harris's illness was so acute as to preclude him from working either shift work or day work with the Authority. Obviously it was not so acute as to constitute an impediment to him taking up a position with Hawkridge Meats on the first working day following his termination. I must accept Mr Harris's assurance that his job at Hawkridge was not already arranged before he resigned. Nevertheless the phenomenon of coincidence regarding dates and timing was quite remarkable in the circumstances. The claim is dismissed
L.A. Koerbin | ||||||||||||||||||||||||||||||||||||