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Tasmanian Industrial Commission

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T1840

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T2109

Industrial Relations Act 1984

 

T1840 of 1989 IN THE MATTER OF A REFERRAL BY THE SECRETARY FOR LABOUR, PURSUANT TO SECTION 13(2) OF THE LONG SERVICE LEAVE ACT 1976, FOR HEARING OF A DISPUTE BETWEEN MRS LYNETTE MAY BRENNAN AND THE KINGBOROUGH NURSING HOME PTY LIMITED
COMMISSIONER R J WATLING HOBART, 9 August 1989
REASONS FOR DECISION
APPEARANCES:
For the Kingborough Nursing Home
Pty Limited
- Mr K Brotherson with
  Mr P Hopkins
For the Hospital Employees Federation of Australia,
Tasmania Branch
- Mr I Linnell (6.4, 2.5, 18.5)
- Mrs V de Groot (8.8.89) with
  Mrs L M Brennan
For the Department of Labour
and Industry
- Mr B Thomson
- Mr B Newton
DATES AND PLACES OF HEARING: 

    

6 April 1989
2 May 1989
18 May 1989
8 August 1989

 

Hobart
Hobart
Hobart
Hobart

 

This matter was referred to the President of the Commission by the Department of Labour and Industry pursuant to the provisions of Section 13(2) of the Long Service Leave Act 1976.

The application referred to me for hearing and determination was an unresolved long service leave dispute between Mrs Lynette May Brennan of Walgett Place, Glenorchy (the employee) and the Kingborough Nursing Home Pty Limited (the employer).

The hearing commenced on 6 April 1989 at which time the Inspecting Officer from the Department of Labour and Industry presented a report of his findings having investigated the circumstances of the dispute.

He informed the Commission that he had attempted to verify, to the best of his ability, the details of the employee's service as no records appeared to be available.

The original claim made by the employee was for pro rata long service leave pursuant to Section 8(3)(c) of the Act. That section refers to an employee whose employment is terminated on the grounds .... domestic or other pressing necessity of such a nature as to justify the termination of that employment.

The claim was made under this section of the Act because the employee was not exactly certain when she commenced employment with the original employer. However, she thought it was approximately January 1974.

It was established at a later time on another day of sitting that the employee had indeed commenced her employment on 20 October 1972 as a Nursing Assistant at the Sunnyside Nursing Home, Dynnyrne, at which time the employers were Mr and Mrs Verdouw.

The employee was still employed at the home when it was transferred from the Verdouw's to a Mr Hall.

The home was then taken over by the current employer, Kingborough Nursing Home Pty Limited.

Mrs Brennan continued her employment with that company and terminated her services with the employer on 15 April 1988. However, her final group certificate shows she was employed by the new company from 13 April to 17 April 1988.

During the course of the hearing when new evidence came to light the Inspector from the DLI made additional reports which, in the end, showed that Mrs Brennan had an automatic entitlement to long service leave as she had completed the 15 years' continuous employment with three different employers. The final employer, at the time of resignation, being Kingborough Nursing Home Pty Limited.

On the final day of the hearing, many of the unresolved matters had been finalised and the transcript shows that the employer had accepted the report of the Inspecting Officer of the DLI that an automatic entitlement exists. It states:-

"COMMISSIONER WATLING:

We adjourned a while back to enable the parties to have further discussions with the inspector from the Department of Labour and Industry to examine things in greater depth, and in light of arguments that were going to be run. I understand that there is a report, further report to be made in relation to this matter by the inspecting officer, Mr Thomson.

Mr Thomson, would you like to take the stand?

MR THOMSON:
(Department of Labour and Industry)

Mr Commissioner, I had a look at what records are available, even though they are incomplete. It is a fact that there is a wage sheet showing a commencement date for Mrs Brennan of 20.10.1972. It is a fact that there is also a wage sheet showing a commencement date for 19 March 1980.

But I believe there is a convincing argument that could be put about that, that all it refers to is a change of contract of employment.

Sir, on the face of it, there appears now to be an automatic entitlement, and I would ask you to make a decision in the matter.

COMMISSIONER WATLING:

Right, well, in fact I probably don't have to. If there's an automatic entitlement, I suppose it is left to me to say to the parties, Is there any challenge to the report from the officer of the Department of Labour and Industry? Mr Brotherson?

MR BROTHERSON:

As far as the employer is concerned, Mr Commissioner, all possible material in this matter has now been put to the Department of Labour and Industry and any report made by the DLI would be accepted by the employer.

COMMISSIONER WATLING:

Right. Mr Linnell?

MR LINNELL:

We have no reason to challenge the DLI's report of today.

COMMISSIONER WATLING:

Right. Mr Thomson, for the completeness of the record, could I ask that you inform both the parties and the Commission, of your amended finding so it can be attached to your earlier reports.

MR THOMSON:

Yes, sir. I'll complete a report and make sure that all parties including yourself get a copy.

COMMISSIONER WATLING:

As there is a report that states that there is an automatic entitlement and as there is no challenge to that report from either side, there is nothing for me to decide, as the only reason that I get it is if there is a dispute over it. As there is no dispute over this long service leave application made by Lynette May Brennan, the matter is now closed.

HEARING CONCLUDED"

Some time later, I was informed by the DLI that the employer had refused to pay the long service leave entitlement and a request was made that the hearing be resumed.

This was done so on 8 August 1989, at which time I was informed by Mr Brotherson, representing the Kingborough Nursing Home Pty Limited that whilst they conceded that Mrs Brennan had the requisite period of service to satisfy the requirements for a full entitlement of long service leave, they were only prepared to pay the proportionate amount of that entitlement which she served in their employ and I can only take it from the employee's group certificate that that means from 13 April to 17 April 1988.

Mr Brotherson said that it was his client's view:-

"...that they should not be required to pay the balance of the entitlement which is by far the substantial amount of the entitlement which was served with previous owners of the Sunnyside Nursing Home.

They have taken steps to contact the previous owners and suggest that they should make contributions along that basis and that request has been denied.

My client is in a position where, at the time that the business was purchased and moved down to Kingborough, long service leave entitlement were paid into a trust account for a number of employees who had achieved pro rata entitlements or full entitlements.

Mrs Brennan was not on that list and therefore, the owners of the Kingborough Nursing Home face a substantial cost which was not taken into account at the time of the sale."

However, Mr Brotherson emphasised (see page 23 of transcript) that there was absolutely no dispute at all that Mrs Brennan had served the requisite period of service and that it followed through various transmissions of business.

As can be seen from the transcript, the facts relating to the transmission of the business and the continuity of employment by the employee are not challenged.

What is in dispute is that the employer only desires to pay an amount of money to the employee that would equate to the time she was actually employed by the Kingborough Nursing Home Pty Limited, i.e.13 to 17 April 1988.

It is also the employer's views that the previous employer should pay the balance.

Regardless of the employer's view on this question, the provisions of Section 5(4) of the Act make it very clear that the last employer is responsible for the whole period of employment.

This section of the Act to which I refer states:-

"Where a business is, whether before or after the commencement of this Act, transmitted from an employer (in this subsection referred to as "the transmittor") to another employer (in this section referred to as "the transmittee") and a person who at the time of the transmission was an employee of the transmittor in that business becomes an employee of the transmittee -

(a) the continuity of the employment of that employee shall be deemed not to have been broken by reason of the transmission; and

(b) the period of employment of the employee with the transmittee shall be deemed to include the period of his employment, and any period deemed to be a period of his employment with the transmittor."

If the employer in this matter is of the opinion that the previous employer should bear the cost associated with this claim, then he is entitled to pursue it through appropriate channels. However, he is not entitled to withhold the payment of long service leave to the employee if she has an entitlement under the Act.

Accordingly I find in favour of the employee in this matter and I ORDER that Kingborough Nursing Home Pty Limited, Redwood Road, Kingston, Tasmania 7050 to pay to Mrs Lynette May Brennan of 7 Walgett Place, Glenorchy, Tasmania 7010 the sum of $2,508.70 in full settlement of her long service leave entitlement.

I further ORDER that such sum by paid within seven (7) days as from Wednesday, 9 August 1989.

 

R J WATLING
COMMISSIONER