IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

REASONS FOR DECISION

DATE AND PLACE OF HEARING:

11 July 1990           Launceston

This matter concerns the reference of a dispute pursuant to Section 13(2) of the Long Service Leave 1976 by the Chief Industrial Officer of the Division of Labour and Industry, to the Commission.

Initially Marie Joan Smith brought to the Division of Labour and Industry a contested claim for pro-rata long service leave payment against St Luke's Private Hospital Ltd.

Following investigation of the circumstances of the dispute the Chief Industrial Officer submitted a report of his findings to the President of the Commission, who then referred the matter to me pursuant to Section 15(1)(c) of the Industrial Relations Act 1984, for hearing and determination.

The applicant in this matter is claiming an entitlement to payment for proportionate Long Service Leave pursuant to Section 8(3)(b) of the Act: "...an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment".

When the matter was brought on for hearing the interviewing officer's report was presented and read into transcript.

The facts contained in that report were essentially uncontested and therefore properly form part of my findings.

Mrs Smith's employment details can be summarised as follows:

1. She commenced employment with St Luke's Private Hospital Ltd. As a State Registered nurse on 23 August 1978, initially on a part-time basis but for approximately the last 4 years she had been employed on a casual basis.

2. In September 1989 Mrs Smith gave notice of her resignation in writing to her employer. She finished on 2 October 1989.

3. There was no evidence to suggest that Mrs Smith was not employed continuously throughout this period.

4. As well as her work with St Lukes Mrs Smith had been carrying out some domiciliary work on a relieving basis for the Department of Veterans' Affairs for the last 3 years. The actual hours worked were very few.

5. At the time her resignation took effect she was employed on day shift in Barclay House which is the Geriatric Section of St Luke's Private Hospital Ltd.

Resignation

In September 1989 Mrs Smith handed her letter of resignation to Mr Ollington, the then Deputy Administrator of the Hospital.

This stated that she could no longer cope with the lifting or assisting to lift heavy and helpless patients.

At the time of submitting her resignation she also enquired as to her entitlement to long service leave.

She was advised by Mr Ollington that she would require a certificate from her doctor. This she obtained and presented to the employer on 9 October 1989.

The certificate from Dr Geoffrey Smith (no relation) stated the following:

"9^th October, 1989
The Director of Nursing,
St. Lukes Hospital,
Lyttleton Street,
LAUNCESTON. 7250

Dear Sir,

Re: Mrs. Marie Smith

Mrs. Smith has been advised to cease working in a hospital situation because of the severe effect it is having on her back.

Mrs. Smith already has significant degenerative lumbar and cervical spine disease and I feel that further stress will accelerate her condition.

Yours sincerely,
G. D. SMITH"

After the presentation of this certificate to the employer verifying her reason for resigning her employment Mrs Smith was informed she was not entitled to pro rata long service leave.

It seemed to me that the main reason for the employer denying the payment of the pro rata long service at that time was that he was not convinced that the work undertaken by Mrs Smith on a limited part-time basis for the Department of Veterans' Affairs was any different to the work she was performing in the hospital.

However, Mr A Flood, the Interviewing Officer for the Division of Labour and Industry presented evidence (which was uncontested) from 3 people, namely Jann Suzanne Le Fevre, Registered Nurse, Jennifer Hill, Registered Nurse, and Dr G D Smith and the Launceston General Hospital stating that the duties carried out by the applicant whilst undertaking work for the Department of Veterans' Affairs did not require heavy physical work such as lifting patients or transferring patients in and out of bed and all her patients were mobile.

After being informed of that situation Mr Ollington indicated to the Interviewing Officer that Mrs Smith probably had an entitlement to pro rata long service leave, however he gave an undertaking to pass the matter on to the present Deputy Administrator of the Hospital, Mr L T Scott.

In correspondence dated 14 June 1990 Mr Scott informed the Division of Labour and Industry of the reasons for continuing to deny Mrs Smith's claim. They were as follows:

"(a) That on the evidence to hand she does not suffer any or any sufficient incapacity justifying the termination of her employment.

(b) Alternatively, if Mrs Smith Suffers from an incapacity, that incapacity was not sufficient to justify her terminating her employment. Duties of a type which she is now performing at the Launceston General Hospital were available to her had she requested those duties. No such request was made.

(c) Based upon the observations of nurses who worked with Mrs Smith she was able to carry out her duties without difficulty and without any signs or symptoms revealing an incapacity for work."

Decision

Whilst not challenging or discounting the medical evidence in this case and conceding that Mrs Smith may have had a back problem that should not be further aggravated by lifting patients, nevertheless, Mr Clues representing the Hospital, strongly argued that the "injury or illness does not justify the termination of employment but rather would justify the rearrangement of the employment under which she works."

He said that whilst the doctor advised her to cease her employment in a hospital situation, "he may not, however, have been aware that there was other work available there that she could perform". The major thrust of the submissions presented on behalf of the Hospital against the claim made by the applicant was that:

(a) The employer was not given the opportunity to find alternative work for the employee and thus retain this person in their employ; and

(b) The employee did not request or seek alternative duties within the hospital that did not aggravate her degenerative lumbar and cervical spine disease.

Mr Clues examined a witness in an attempt to show that such work existed.

The evidence adduced from the witness showed:

1. That work existed in the domiciliary service provided by the hospital and that work would not involve any heavy manual lifting of patients.

2. There were other applicants for the job, however Mrs Smith would have been "given consideration" along with all other applicants and the position would have been filled on merit

3. There was no guarantee that Mrs Smith would have obtained the position.

It is fact that the employee did not request alternative employment but on the other hand neither did the employer offer to place her in or find her another position in the hospital even after being appraised of Mrs Smith's reasons for wishing to terminate her employment.

If, as the submissions suggest, the Hospital did not want to lose her services then there was certainly no indication of this given to Mrs Smith at the time or immediately after she handed in her letter of intention to resign.

It could not be said that the Hospital management did not have sufficient time to talk to or counsel Mrs Smith because the actual effective date of resignation was determined by the employer.

It can be seen in the letter given to Mr Ollington by Mrs Smith that she wanted to resign and was sorry to be leaving. Whilst it did not given any specific date the resignation was to take effect it did state "at the earliest convenient date".

In a letter to Mrs Smith dated 18 September 1989 the Administrator and Director of Nursing acknowledged receipt of her correspondence in the following terms:

"Your resignation is accepted - with your last working day being 2 October 1989".

It then went on to thank her for her association with the Hospital.

I would find it easier to understand the submission presented by Mr Clues if the employer, on becoming aware that the employee's work cause or exacerbated a sickness or ailment (which he was at the time Mrs Smith handed her letter of resignation to Mr Ollington), made a definite offer to the employee of alternative work in an area of his employ, that would remove the need to undertake the work that caused or exacerbated the sickness or ailment, so long as that alternative work was within the employees competence and did not destroy the essential nature of the contract of service.

If that was the case, then an employee, to be successful in an application made under this section of the Act, would have to demonstrate that the alternative work offered by the employer:

(a) Could not be reasonably expected to be undertaken by the employee; or

(b) Was not within the employee's competence; or

(c) Would destroy the essential nature of the contract of service; or

(d) Would continue to exacerbate the sickness or ailment.

I would have to conclude in this matter, that the employer had no intention to offer Mrs Smith guaranteed alternative work along the lines mentioned earlier, from the time she handed her letter of intention to resign to Mr Ollington and 2 October 1989 being the date given to her by the employer as being her last working day.

In a further attempt to persuade the Commission to reject the claim on the grounds that the employer was not given an opportunity to change the working arrangements of the employee, Mr Clues relied on two previous decisions of the Commission, namely T.895 of 1987 and T.1651 of 1988.

Application T.895 of 1987 deals with an employee who transferred from shift work to a day work position with a resulting loss of income of approximately $100 net per week. It was claimed that the loss of income had produced a stressful situation and one of hardship for the employee. This employee claimed pro rata long service leave on account of the domestic and other pressing necessity that required the termination to take place.

Mr Clues relied on the following paragraph from the decision to support his case he said:

"In drawing his conclusions on page 5, Commissioner King stated:

"A significant part of the argument relied on by the controlling authority in this matter is that the employee did not give sufficient time to allow for investigations into the possibility of finding a financially acceptable day work position.

Exhibit I.4, a letter to Mrs Webb from Mr Flassman for the administrator dated 16 September reads..."

(Underlining mine)

We can see from this quote that Commissioner King was only pointing out what was the "significant part of the argument relied upon by the controlling authority" in that case.

He did not endorse as Mr Clues said:

"The employer should be given reasonable time to see if alternative arrangements can be made so that the employee can be retained within his employment, and termination isn't justified."

Indeed Commissioner King later went on to say:

In the absence of conclusive evidence on this question, I believe it reasonable for Mrs Webb to conclude that it was highly unlikely that a financially acceptable position would be `found' for her. It may have been that at some time in the future she was able to successfully apply for a charge nurse or supervisory nurse position, or, even a shift work position that did not involve heavy lifting. However, there was no certainty about such an eventuality."

The other matter which Mr Clues sought to draw comfort (T.1651 of 1988) was an application for pro rata long service leave made by the employee after terminating his employment. The claim was made on the grounds of alleged domestic problems.

The Commission in its decision did as Mr Clues rightly pointed out stated the following:

"Having so found it follows that I accept Mr Smith's argument that a reasonable man, before taking a decision to resign, would have made his employer aware of his domestic difficulties in order to afford the employer a reasonable opportunity to make other arrangements for him."

A careful reading of the entire decision reveals that the applicant in that matter was very reluctant to give any details of his domestic situation not only to his employer at the time of termination but also the Commission during the course of the hearing, and hence the application failed.

I am satisfied that the cases which gave rise to the two quotes drawn out by Mr Clues are sufficiently different, in terms of the grounds for the claims and the facts surrounding them, as to render them of little or no assistance to me in deciding this current application. It must be remembered in this matter the applicant's actions were supported by medical advice.

As stated earlier it is a fact that the employee did not request alternative work, however I do not support the contention that no entitlement exists simply because that request was not made. Any intention of the legislature to impose such conditions on individual contracts of service would need to be expressed in clear words to that effect.

The medical evidence before me in this matter clearly indicated that:

(a) Mrs Smith had been advised by her doctor "to cease working in a hospital situation because of the severe effect it is having on her back";

(b) That she "already has significant degenerative lumbar and cervical spine disease";

(c) "further stress will accelerate her condition";

(d) she was also undertaking physiotherapy after being referred by her doctor. This commenced on 3 January 1989 some 9 months before she resigned

Even though Mrs Smith did not supply her employer with a copy of the medical certificate until after the termination of her employment nevertheless this should not disentitle her to her rights assuming her reason for leaving was in fact her medical condition.

This medical evidence along with the nature of the work the employee was required to perform was uncontested by the respondent. In the absence of any other expert opinion to the contrary I believe it is reasonably open to me to conclude that:

(a) Mrs Smith held a responsible and no doubt demanding position which obviously required a person of reasonable health.

(b) The applicant herself, supported by medical advice had taken the view that she could no longer fulfil the requirements of her position due to her illness.

(c) The employee's medical condition justified her ceasing her work at St Luke's Private Hospital Ltd. And in my opinion it was that condition that caused her to terminate her employment.

For all the forementioned reasons, I am going to grant the application.

As a result of that finding, I hereby order, in accordance with the provisions of Section 13(3) of the Long Service Leave Act 1976, the St. Luke's Private Hospital Ltd. To pay to former employee, Mrs. Marie Joan Smith, "Auburnvale", Camerons Road, Underwood, Tasmania 7268 the sum of $2,819.59 being pro rata long service leave entitlement.

R. J. Watling
COMMISSIONER