IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This long service leave dispute concerns a Mr David Luyks and Savage River Mines.

Having been investigated, but not resolved by the Department of Labour and Industry, pursuant to Section 13(2) of the Long Service Leave Act 1976 the issue now falls to this Commission to decide.

According to the best evidence available, it appears that Mr Luyks had lived at Savage River since he was 2 years of age.

After leaving school on completion of year 10, he had been able to obtain employment with the Savage River Mine. He was first engaged as a casual, and on 2 January 1981 was offered permanent employment as a storeman. He held that position until he resigned on 12 July 1988. At that time he was classified as Senior Storeman. Apparently, while on annual leave between 24 June 1988 and 7 July 1988 he was able to find alternative employment at Ulverstone. This resulted in his resignation.

On 12 August 1988 the company received a letter from Mr Luyks' doctor, the text of which appears later. And on 19 August Mr Luyks' solicitors wrote to the company on his behalf requesting payment for pro rata long service leave.

The letter from Mr Luyks' doctor stated:

"TO WHOM IT MAY CONCERN

Re: Mr David Luyks

David has been a patient of mine since 1982. I have seen him several times in Ulverstone. He has lived in Savage River virtually all his life. He has been medically well, but over the last year or so he has started to become slightly depressed and has had effective disorder of insomnia and some other psychological signs of depression.

This was thought to be related to his situational state and he therefore applied for a job outside of Savage River. He is now working in Ulverstone and I feel that this is a wise move, and I feel that for medical reasons he required to move from Savage River.

Should you require more information I would be happy to supply this to you.

SIGNED: DOCTOR G VANDERSLINK"

(Emphasis mine)

The Department of Labour and Industry duly followed up this letter and requested further information. This was supplied by Dr Vanderslink on 5 December 1988, and read:

"Dear Sir

Re: David Luyks and Savage River Mines

David has been a patient of mine since 1983 (note earlier certificate saying 1982). I have previously written a letter about his condition. Although I have not seen David very frequently in the surgery, I have talked to him about his problems.

In 1983 I saw him with recurrent epistaxis and he was referred to Dr Gray. I also saw him in August 1983 and August 1984 with severe pustular acne. At that time he was rather concerned about his situation at Savage River as he had been there since a child and felt rather closed in.

I suggested that maybe he should move to the North West Coast or to another area if he could find another occupation. I saw him again in late 1984. I then went away for some time and I discussed his problem with him again in August 1988. He told me that he had been living and working in Ulverstone for the last 3 weeks and that his conditions in Savage River had deteriorated. I felt that for more medical well being that it was necessary for him to move out of Savage River area. Should you require more information I could be happy to supply this to you.

SIGNED: DOCTOR G VANDERSLINK"

The Company disputed Mr Luyks' claim, stating that it failed to meet any of the criteria for pro rata payment set out in the relevant part of the 1976 Act. Furthermore, the claim itself did not rest upon any particular provision of the Act. But by the process of elimination it was assumed that Mr Luyks' claim stood or fell on either incapacity, domestic or other pressing necessity, or illness of such a nature as to justify termination.

The matter was complicated somewhat by the fact that Mr Luyks chose to represent himself during proceedings. The transcript will show that he was given every assistance in putting his own case (which was largely repetition of the facts, presented with impartiality by the Department of Labour and Industry investigation officer). He was also afforded a right of reply.

Mr Joll did not attempt in any way to take advantage of Mr Luyks' inexperience as an advocate. Nevertheless the Commission was concerned that Mr Luyks chose to represent himself. However, that was his choice.

He had earlier sought and obtained legal advice, but clearly had no brief prepared for him. Or if he did, he certainly did not refer to it or read from any documentation. Once again that was his clear choice, as the formal record of proceedings will show that the following discussion occurred:

"President: Well now, Mr Luyks, we've got to the point where you've heard the result of the investigations made on your behalf.

It's now open to you to address this Commission and persuade me that your claim is justified. I'd again express some concern that you don't require notepaper. You apparently don't have any documentation regarding this investigation, and you don't have a copy of the Act.

Mr Luyks I've got a copy of what Mr Armsby (DLI Inspector) read out.

President You've got that. Oh, very well. That's okay. I just want to make sure that you're getting a fair go, that's okay.

Mr Luyks Yes, I've read it quite a few times.

President You're happy that you're getting a fair go?

Mr Luyks Yes, I am.

President Well now, would you like to think about it over lunch, or are you prepared to put your case now?

Mr Luyks No, I'm prepared to go now."

Transcript p.12

According to Mr Luyks and the DLI inspecting Officer (Mr Armsby), Mr Luyks had lived at Savage River for more than 20 years, having gone there with his parents when he was only 2 years of age.

As he grew older he became increasingly disenchanted with the lifestyle at Savage River. In August 1985 he purchased a house at Sulphur Creek near Burnie and spent most of his leisure time there.

He found it more and more difficult to cope with his job of Senior Storeman during this period. The isolation of Savage River was apparently making him depressed. Although his parents and older brother were still resident at Savage River, Mr Luyks felt that he needed a change of environment.

He applied for a "transfer" to the company's Port Arthur operation but this was unsuccessful. Eventually he left of his own accord to take up a position with a private company in Ulverstone.

None of the background information was disputed. Nevertheless, the company took issue with the fundamental question of Mr Luyks' claim to entitlement to pro rata payment.

The doctor's certificate did not point to any significant disorder of a nature sufficient to justify termination on the ground of ill health. It is true that his doctor had seen him on a number of occasions for acne and insomnia and some "psychological signs of depression thought to be related to his situational state". The statement by his doctor that "he has been medically well, but over the last year or so he has started to become slightly depressed", did not suggest that Mr Luyks, was, at the time of resignation, suffering from a severe illness sufficient to justify termination on that ground alone. Admittedly the doctor did conclude one letter by stating: "He is now working in Ulverstone and I feel that this is a wise move, and I feel that for medical reasons he required a move from Savage River."

A statutory declaration by Mr Luyks' parents was referred to during proceedings by the Department of Labour and Industry. This was intended to demonstrate that in the opinion of Mr and Mrs Luyks, "Mr Luyks suffered many periods of depression and severe insomnia due to stresses at work which affected his working ability".

The problem with information of this kind is that unless those who attest to a statutory declaration present themselves for cross examination if required, the information contained in such a document is of little, if any, value. In this case neither Mr nor Mrs Luyks senior were in attendance and available for cross examination.

Mr Joll, in responding for the company, argues that the grounds upon which Mr Luyks relied to support his claim were not specified. After reviewing the criteria and testing it against the reasons given for termination, Mr Joll concluded that Mr Luyks was relying upon either incapacity, domestic or other pressing necessity, or illness of such a nature as to justify his termination.

Notwithstanding the retrospective and somewhat speculated views expressed by Mr Luyks' medical practitioner, I can find no justification for finding in Mr Luyks' favour on the ground of incapacity, domestic or pressing necessity. Nor am I able to find, on the weight of evidence before me, that he was suffering from an illness of such severity as to justify termination on that ground.

Accordingly I have no alternative but to dismiss the application. In doing so I tend to agree with Mr Joll's illustration that had the company itself terminated Mr Luyks' employment for any of the reasons Mr Luyks put forward to support his own case, it would be entirely possible that any such termination that rested upon similar evidence would not be sustainable on review. And that dismissal by the company for any of those grounds may very well have been considered harsh, unjust and unreasonable.

Turning the question on its head therefore, Mr Joll submitted that there could only be one conclusion. Clearly Mr Luyks' resignation did not satisfy the criteria for pro rata payment.

L.A. Koerbin
PRESIDENT