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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
REASONS FOR DECISION APPEARANCES:
DATE AND PLACE OF HEARING: 12 September 1989 Launceston
This is a long service leave dispute referred to the President of the Commission by the Department of Labour and Industry, for hearing and determination pursuant to Section 13(2) of the Long Service Leave Act 1976. The claimant, Mr Peter John Cook, sought a long service leave payment from his employer, Mr Ian Hume Swan. Both parties appeared alone and were not represented. Prior to hearing from the parties I called on Mr A B Flood, an Industrial Officer of the Department of Labour and Industry, Launceston, to report on his investigations in this matter. Mr Flood was sworn and read his report which had been previously distributed to all parties. It was a good, full report. In essence Messrs Cook and Swan did not challenge or question the report as it related to the facts relevant to the long service leave claim although each one did clarify his views on unrelated matters: later in the hearing Mr Cook also queried the amount of his total wage assessed by Mr Flood because of a superannuation payment factor, but, in the event that did not become an issue. The relevant facts were that Mr Cook, a farm worker, was employed for the purposes of this claim, on a family farm, "Pinefield", Longford, for eighteen years, from the 14 December 1970 to the 31 December 1988. That period of employment was broken between the 1 May 1976 and the 31 October 1976 inclusive (six months) when Mr Cook went for a holiday overseas. During the eighteen years of his employment on the farm Mr Cook had a number of employers commencing with Mrs M J Swan and ending with Mr I H Swan, Mrs Swan's son. Mr Cook claimed that his six months absence from work on holiday was pre-arranged with Mrs Swan who had agreed to continue his employment on his return. In other words the absence, in accordance with Section 5(1)(j) of the L.S.L. Act, did not break the continuity of his employment. Mr Swan denied the claim saying that his mother had not agreed to the break in employment for long service leave purposes. At the hearing, Mr Cook brought two Witnesses in support of his claim, Messrs B Mitchell and H Mackinnon, who both said that their clear understanding at the time was that Mr Cook had arranged his return to work with Mrs Swan prior to going overseas. Mr Mitchell worked on the farm with Mr Cook at the time and Mr Mackinnon, who lived in the area, was a friend of the family and a frequent visitor to the farm. Neither witness had direct knowledge of the claimed arrangement. Mr Cook also produced a letter (Exhibit `C1') from the person who took his place working on the farm during his absence, one Miss Z J Swearse, an Englishwoman currently in Norway; In the letter Miss Swearse said she knew she was working on a temporary basis until Mr Cook's return. Mr Swan accepted the letter as factual. Mr Swan bought one witness in support of his claim, Mr J Hudson, who was the accountant for the business. Mr Hudson's evidence, also not direct, was that Mrs Swan, in passing directions as to Mr Cook's payment through his secretary, never mentioned long service leave pay or arrangements. At the conclusion of the evidence and submissions from the parties, I adjourned the hearing and spoke separately and privately to Messrs Cook and Swan. They also had private discussions between themselves. When the hearing was resumed Mr Cook advised that he had reached a settlement with Mr Swan which the latter confirmed. With that I closed the hearing. Subject to the terms of settlement being implemented to the satisfaction of the parties concerned, this matter has been completed.
P A Imlach |