T2077 - 24 August 1989
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
REASONS FOR DECISION APPEARANCES:
DATE AND PLACE OF HEARING: 22 August 1989 Hobart
This is a long service leave dispute application referred to the Commission for hearing and determination pursuant to Section 13(2) of the Long Service Leave Act 1976. The facts were that an employee of the City of Clarence, Mr W R Butler, a plumbing inspector, terminated his employment on 30 June 1987 to take up private contract work elsewhere. Mr Butler is a tradesman plumber. Some 13 months after terminating, Mr Butler applied for pro rata long service leave on the grounds of "domestic or other pressing necessity of such a nature as to justify the termination" in accordance with Section 8(3)(c)of the Long Service Leave Act 1976. Mr Butler claimed that his wife having ceased work to permanently care for a new baby his family was thereby reduced to a single income which was not sufficient to meet his ongoing expenses. He claimed that he was compelled by that "domestic or other pressing necessity" to terminate his employment to seek more remunerative work elsewhere. Mr Butler was employed by the City of Clarence for almost 7.1/2 years, that is, from the 10 December 1979 till the 30 June 1987; this made him eligible to claim pro-rata long service leave so long as he fulfilled the other relevant requirements of the Long Service Leave Act 1976. The City of Clarence rejected Mr Butler's claim (for the purposes of this decision) on the grounds that it did not fall within the provisions of Section 8(3)(c) of the Long Service Leave Act 1976 relating to "domestic or other pressing necessity". Another of the grounds for rejection originally relied upon by the City of Clarence in opposing Mr Butler's claim was that it did not fall within the provisions of the Local Government Act 1962. Mr Abey, on behalf of the City, accepted that the claim was within the jurisdiction of the Long Service Leave Act 1976 and therefore presumably the abovementioned first grounds were not relied upon. There were quite a number of detailed facts and precedents raised in the prosecution and defence of this claim and I believe that the cases on both sides were well canvassed and the report from the Department of Labour and Industry was complete and accurate. In other words I believe the whole case history and the arguments in favour and against were such that I was presented with the clearest possible picture upon which to make a decision. I believe, however, that this case rests on the simple fact that there was no real "domestic or other pressing necessity" despite all the other factors involved which, though relevant and important, did not impinge upon that simple fact. The circumstances surrounding Mr Butler's decision to seek better paid employment were not unusual or pressing in that most married persons would expect reasonably, when a baby is born, there will be a reduction in income if the wife ceases her paid work. The cessation of work may be temporary or permanent, but, the situation is foreseeable and not unusual. In such circumstances there is nothing special about Mr Butler's position at the time and his decision about seeking better paid employment is one made by many in the normal course of life. In this context I accept Mr Abey's argument that to grant the claim would "open Pandora's box" for everyone in the same position, although in itself this is not a reason for rejecting the claim. In the context also of what I have said in the preceding paragraph in particular I do not accept that the foreseeable circumstances constituted "a pressing domestic necessity" at the time of Mr Butler's termination of employment. There was nothing significant nor compelling about Mr Butler's domestic situation. Everything occurred as might have been expected and judgments had to be made in that context. I think it is important to note the other factors raised in this matter on the basis that it may be thought that they had not been adverted to in this decision. They were noted, but, I do not consider them directly pertinent to the "pressing domestic necessity" factor: they were:-
The decision by Mr Commissioner King in matter No. T.618 of 1986, referred to by Mr Abey, is of some relevance to this claim in that the reduced financial circumstances were not enough to satisfy the "domestic or other pressing necessity" requirement, but, the facts were not "on all fours" with those in this claim; and therefore it is not a clear precedent. I am unable to accede to the claim.
P A Imlach |