T1841
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This long service leave dispute comes before the Commission pursuant to Section 13(2) of the Long Service Leave Act 1976. The matter at issue is whether or not a Mr Roger Blackwell is entitled to pro rata long service leave after having terminated his own services on grounds of alleged ill health. Mr Blackwell was employed at Savage River Mines from 20 November 1979 to 20 March 1987. According to the Department of Labour and Industry Investigating Officer, upon whose oral and documentary evidence this decision is largely based, Mr Blackwell worked as a Plant Operator from November 1979 until March 1987 when he terminated his own employment on grounds of ill health. In submitting his notice of resignation Mr Blackwell tendered the following letter dated 12 March 1987, written by Dr Heenetigala.
As part of his investigation into the matter the Inspecting Officer then wrote to Dr Heenetigala seeking confirmation of and elaboration upon Mr Blackwell's claim that his resignation was in fact occasioned by illness. Dr Heenetigala responded as follows:
It would appear that Mr Blackwell's marriage broke up in 1986. His wife and children continued to live at Savage River but Mr Blackwell was not given access to his children. Prior to his divorce being made absolute he became engaged to another person, but that too fell through. For a combination of reasons he apparently became depressed and resorted to alcohol with the inevitable consequence of lost time and poor work performance. Between 25 November 1986 and 19 January 1987, he produced four medical certificates. One was produced on 25 November; another on 10 December - each for emotional problems; on 26 December he was given 10 days off work with a lacerated hand, and on 19 January 1987 he was given a certificate until 11 February 1987 for "medical condition". During the last absence the company decided to discontinue his employment and prepared the necessary notice of termination. However, this was suspended when Mr Blackwell voluntarily submitted himself for treatment at the Alcohol and Drug Rehabilitation Centre in Hobart. He did not return to work, although he only enrolled in a one-week course provided by the centre. Nevertheless he remained on the company's books. On 16 March, Mr Blackwell tendered his resignation to take effect one week later. His reason for leaving was ill health. Attached to his resignation was the letter to which I have referred, and signed by Dr Heenetigala. In tendering his resignation Mr Blackwell requested payment for pro rata long service leave. This was refused by the company who claimed that:
In determining this matter I intend to test the evidence against the reasons given by the company for declining Mr Blackwell's application. In fairness to Mr Blackwell I think I should do this as his agent appeared to rely more on domestic or other pressing necessity than ill health, although it is true that Mr Bacon did address that issue in passing. As Mr Blackwell felt himself unable to prosecute his own case, he was gratuitously assisted by Mr Bacon of the Transport Workers' Union. Without wishing to impugn the quality of that representation I would observe that a well researched advocate would have no doubt been expected to at least attempt to "fit" Mr Blackwell's condition to the alternative grounds that more closely related to Mr Blackwell's condition. Mr Joll quite clearly tested Mr Blackwell's claim against all of the options set out in the Act. On reviewing the evidence submitted by the Department of Labour and Industry and after hearing Mr Joll in reply, I have formed an opinion that on the balance of probability Mr Blackwell's termination was mainly caused by illness associated or exacerbated by alcohol. It is not for this Commission to distil from medical opinion (in this case two medical opinions) the root cause of Mr Blackwell's depression. But there was unchallenged evidence from Dr Heenetigala, the Department of Labour and Industry Inspector, Mr Bacon himself (from the bar table) and the company representative (also from the bar table) that alcohol was affecting Mr Blackwell to such a degree that he was unfit for useful work at various times. The company, out of consideration for his welfare, very fairly, I thought, displayed a tolerance of Mr Blackwell's shortcomings to a degree rarely witnessed these days; so much so that it hardly seems fair now to reward the company for its humanitarian attitude by imposing on it an obligation to pay Mr Blackwell pro rata long service leave. My inclination is to refuse the claim. But were I to do so what would the grounds be to support such a conclusion? Had the company dismissed him for having been AWOL following his discharge from the Alcohol and Drug Rehabilitation Centre, it would have been well within its rights to have done so. But it did not. One can only conclude that local work practices are such that it is not easy to dismiss an employee of Savage River Mines. But that question is not before me. Dr Heenetigala has attested to the fact that he advised Mr Blackwell to leave the area - indeed the State - for reasons of health. Mr Blackwell obviously acted upon that advice, although not immediately. But he has since returned to Tasmania. I am unsure whether his condition has now improved or not. Nevertheless I am aware that although present during proceedings he was apparently unable or unwilling to give evidence on his own behalf. Mr Joll suggested that Mr Blackwell's condition was not work caused and was of his own making. Be that as it may, there is nothing in the Act that disqualifies Mr Blackwell on that ground alone. Had there been no medical evidence attesting to his condition and the fact that he was advised to leave Savage River - in fact Tasmania - and no evidence of any kind that Mr Blackwell's irregular attendance was due to no reasons other than depression exacerbated by alcohol, I would have dismissed the claim. But the evidence supports Mr Bacon's contention as do the facts submitted by the inspecting DLI officer. In short, on the evidence before me I find that Mr Blackwell was receiving periodic medical attention for an emotional problem; the company was aware of his condition; the company was going to dismiss him but refrained from doing so when he voluntarily submitted himself to John Edis Hospital; his doctor confirmed by letter that he had advised Mr Blackwell to terminate his employment on medical grounds; and there was no evidence to suggest that his condition is any better now than it was at the time he tendered his resignation. For all of these reasons I must reluctantly allow the claim. Had I had a wide discretion I may have formed a different opinion. If I have correctly understood Mr Bacon and Mr Joll, work practices at Savage River are such that before suffering dismissal from his employment, an employee is first entitled to two prior written warnings on the same subject matter. A third transgression for the same offence results in termination. It seems to me therefore that Mr Blackwell is extremely fortunate in not having been dismissed for absenteeism. Clearly he had no medical certificate covering a significant part of his last absence. Yet the company, on compassionate grounds I presume, kept him on the books and allowed him to resign, thereby itself incurring a prima facie obligation for payment in lieu of accrued long service leave. Its generosity I fear has been repaid by what now appears to be a sustainable claim for pro rata long service leave, and I find accordingly. The claim is allowed.
L A Koerbin | |||||||||||||||||||||||||||||||||