Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T2141

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.2141 of 1989 IN THE MATTER OF AN APPLICATION REFERRED BY THE SECRETARY FOR LABOUR PURSUANT TO SECTION 13(2) OF THE LONG SERVICE LEAVE ACT 1976 IN RELATION TO A DISPUTE BETWEEN MRS U GOLDSMITH AND MR AND MRS B RIX (TRADING AS HOTEL TASMANIA)

RE: PRO-RATA LONG SERVICE LEAVE

 

COMMISSIONER P A IMLACH HOBART, 20 December 1989

REASONS FOR DECISION

APPEARANCES:
For the Secretary for Labour -
Department of Employment, Industrial Relations and Training
- Mr G Pettman with
  Messrs G Thomas and J Evans
DATE AND PLACE OF HEARING:
3 October 1989         Launceston
7 December 1989      Launceston

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.

A cook at the Hotel Tasmania in Launceston, Mrs Ursula Goldsmith, who had been employed there for over twelve years, claimed that she had been terminated when the management of the Hotel changed hands in April 1989.

Mrs Goldsmith claimed pro-rata long service leave on the grounds that she had been terminated by her employer for a reason other than serious and wilful misconduct.1

The employers at the time, Mr and Mrs B Rix, claimed that they had not terminated Mrs Goldsmith, but, rather, she had told the in-coming or new employer, she did not wish to remain employed: they claimed moreover she had arranged new employment at the Riverside Motor Inn prior to leaving the Hotel Tasmania.

There were two hearings conducted over this matter. Unfortunately, in both cases, neither the employers nor any representatives appeared: needless to say this made settlement between the parties impossible and precluded the proper operation of due process. Added to this, the employee, Mrs Goldsmith, also appeared unrepresented.

Just prior to the first hearing a "facsimile" letter was received from the employers, Mr and Mrs B Rix: the letter sought an adjournment of the hearing because of late notice. I decided to proceed with the hearing as witnesses were on hand and because of the late arrival of the adjournment request. I advised the parties present that the employers would be advised of the outcome of the day's hearing and they would be given a chance to put their case, if they so requested, to another hearing.

At the first hearing a report was read into transcript by Mr Garry Thomas, an Inspector of the Department of Labour and Industry (DLI). As usual, the Department's report was full and well researched.

Mr Michael Pridmore, the new licensee of the Hotel, appeared as a witness and said that he had told Mrs Goldsmith he would not be employing her because he was bringing his own catering staff to the Hotel with him.

At the first hearing, in the absence of the last employer, I was satisfied that Mrs Goldsmith had not resigned from employment at the Hotel Tasmania and that, by not being taken up by the new employer, Mr Pridmore, she had been terminated effectively. I indicated to those present at the hearing that Mrs Goldsmith appeared, on the evidence, to have an entitlement to pro-rata long service leave, but, before making a formal decision on the matter, I would communicate to Mr and Mrs Rix the details canvassed at the hearing and advise them that unless they could gainsay Mr Pridmore's evidence, I would issue a decision: an appropriate letter was sent to Mr and Mrs Rix in Queensland.

They responded seeking to pursue the matter further saying:-

1. Mrs Goldsmith sought and accepted a position at Riverside Motor Inn;

2. Mrs Goldsmith advised Mr Pridmore that she did not want employment with him (because she had another job); and

3. Mr Pridmore then advised that he did not require her services.

As a result of the Rixs' response, I called another hearing for Thursday 7 December 1989 in Launceston.

Again, neither party was represented and no one appeared for the employer's side at all.

Mr Thomas of the DLI gave further evidence of his investigations following the first hearing. In answer to questions from me he said he was of the opinion that Mrs Goldsmith was told by Mr Pridmore (without any prior approach by her) that work with him was not available and that Mrs Goldsmith had applied for a job at the Riverside Motor Inn after she had left the Hotel Tasmania. This latter point was confirmed by the proprietor of the Riverside Motor Inn in a signed statement.

I am satisfied that Mrs Goldsmith was terminated from her employment at the Hotel Tasmania, Launceston in April 1989, when the then employers, Mr and Mrs B Rix, handed the running of the Hotel to Michael Pridmore.

Mrs Goldsmith was employed continuously at the Hotel Tasmania by a succession of employers culminating with Mr and Mrs B Rix. In all the circumstances I confirm that she is entitled, in accordance with Section 8 of the Long Service Leave Act 1976, to a (12 years service) pro-rata long service leave payment from Mr and Mrs B Rix, having been terminated through no fault of her own after being employed continuously at the Hotel Tasmania for over twelve years.

An order reflecting this decision is attached.

 

P A Imlach
COMMISSIONER

1 L.S.L. Act Section 8(3)(d)