IN THE TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
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:-
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:-
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:-
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