IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This decision deals with a disputed long service leave claim referred to the Tasmanian Industrial Commission (the Commission) by the Department of Labour and Industry on 27 November 1985. The final paragraph of the referring letter to the President of the Commission reads:

"This dispute cannot be resolved by further Departmental investigation and is accordingly referred to you for determination, pursuant to Sections 13(1)(b) and 13(2) of the Act."

The Act referred to above being the Long Service Leave act 1976.

The President referred the dispute to me in accordance with the provisions of Section 15(1)(e) of the Industrial Relations Act 1984.

Section 8A of the Long Service Leave Act 1976, amongst other things, provides:

"8A

(2)   Subject to subsections (30 and (4), the period of long service leave to which an employee is entitled under this Act is -

(a) on the completion by an employee of at least 10 years continuous employment with his employer -

(i) 13 weeks' long service leave in respect of every period of 10 years' continuous employment with his employer; and ...

(b) in the case of an employee to whom this paragraph applies by virtue of subsection (3) who has completed 5 years, but has not completed 10 years continuous employment with his employer, such a period of long service leave as bears the same proportion to 13 weeks as the total period of the employee's continuous employment with his employer bears to 10 years.

(3)    (a) ...

(b) ...

(c) an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment;"

The claim for long service leave payment is made by Mrs Spithoven (the Employee) against Savage River Mines (the Employer) in accordance with the above.

The Employer disputes the entitlement.

Following some difficulties experienced by the Employee in being available for a hearing of this matter, it was finally listed for determination on 11 March 1986 in Burnie.

At that hearing the Employer sought further medical information, upon receipt of which, the company would further consider its position.

On 16 May 1986 the Commission made an offer in writing on behalf of the Employer to the Employee. The offer was rejected by the Employee, thus leaving the matter to be decided on the facts.

The generally agreed relevant facts in this matter are:

• the employee was employed by Savage River Mines from 24 January 1978 until 23 August 1985;

• the Employee lived at Savage River with her husband who was also employed by Savage River Mines;

• the Employee had enjoyed good health during the majority of her employment period at Savage River, losing very little time due to sickness in the first six years;

• during the last twelve months of employment, however, the Employee had significant periods of time off work on account of personal sickness;

• the Employee formed an association with another employee of Savage River Mines and ultimately left the area with him;

• both employees resigned from Savage River Mines at the time of leaving the company town.

The dispute in this matter centres on the reasons for the Employee leaving her employment.

The Employee on the one hand maintains that her health had deteriorated to such an extent because of her circumstances that she left the area and her employment on medical advice.

The Employer on the other hand suggests that the Employee resigned to continue her association with a male employee who had resigned and left the area. If this was not the total reason then any medical problems, and in particular any stress associated with the situation was self inflicted and therefore not reasonable grounds requiring the company to pay pro rata long service leave. In any case, stress was a common factor in life at Savage River and in any similar isolated town. If such factors were going to be accepted as justifying payment of pro rata long service claims, it could involve the company in considerable payments.

In supporting her case, the Employee relied on the medical reports of a Dr Caseleyr of the Savage River Medical Centre. The reports read as follows:

"Personnel Department                                                             29.4.'85
Savage River Mines

Mrs M Spithoven has approached me concerning pro rata long service leave on termination of her employment at end of May 85.

As you may be aware she has been under extreme stress leading up to and following the breakdown of her marriage to Hans. She feels that she can no longer continue to live in Savage River because of the ongoing problems with her estranged husband.

In my opinion the mental strain she is under constitutes sufficient grounds for the granting of pro rata long service leave on medical grounds.

Sincerely
A Caseleyr"

and

"Department of Labour                                                                2.10.'85
and Industry

Mrs Spithoven approached me for a letter supporting her claim for pro rata long service leave on medical grounds, at the end of April '85.

Prior to that, I had been seeing her frequently for the previous six months concerning the relationship with her husband, with whom she had become estranged, eventually split-up, and then been persistently harassed by him.

The continual pressure from her husband, probably also from well meaning friends of the couple in this small town, sent her into a severe reactive depression. She spent about a week as an inpatient at Devon Clinic and seeing Dr Briggs, the psychiatrist, as an outpatient, and tried to continue to live and work here. Unfortunately both her husband and her friends continued to pressure her and she became severely depressed again and decided that she was unable to cope with life in this town.

Unless the Long Service Leave Act precludes mental illness as sufficient medical grounds, I can see no reason why she should be refused pro rata long service leave.

Sincerely
A Caseleyr"

A further report received by the employer following the adjournment of proceedings on 11 March 1986 reads:

"TO WHOM IT MAY CONCERN                                                         4.4.'86

This is to certify that Mrs M Spithoven of 181 Old Bass Highway, Wynyard, date of birth 22.12.1953, was a patient in Devon Clinic from 18.3.85 to 22.3.85. She required treatment in hospital for a depressive illness which was associated with difficulties which were occurring within her marriage.

G S Briggs
Regional Psychiatrist"

I have included the content of all medical reports in this decision with some reluctance. However it represents the only real evidence I have on which to base a finding and in that context it is therefore critical to the case.

I have some sympathy with the views of the employer going to the incidence of stress amongst employees and the families of employees in small isolated communities. There is no doubt that isolation and small close-knit communities bring their own particular problems. Increased stress on individuals and stress related illnesses no doubt being one of the additional factors to be dealt with by management.

However, I cannot accept that those illnesses are any less real because they are encountered more frequently or increased in severity because of isolation and other factors.

I also cannot see any difference in a situation where stress is brought on or aggravated by one's own actions or circumstances to another where an employee ultimately develops cancer because he/she smoked. Surely in the context of this case, it could not be said that an employee is not entitled to pro rata long service leave because he/she had to resign after being diagnosed as having cancer following a life time of smoking.

It would seem to me that if the medical diagnosis is correct; that the employee is suffering from stress caused by her marital circumstances, leaving the source of the problem ie her husband was not only the correct medical solution but also a common sense one.

I accept the medical evidence as being satisfactory grounds upon which a claim for pro rata long service leave should succeed in accordance with Section 8A of the Long Service Leave Act 1976.

An order reflecting my decision in this matter is attached.

J G King
COMMISSIONER

ORDER

That Savage River mines pay Mrs M Spithoven of 181 Old Bass Highway, Wynyard, an amount of $3,211.09 being the pro rata payment for long service leave accrued by her in accordance with the Long Service Leave Act 1976 during her period of employment with that company from 24 January 1978 to 23 August 1985.

J G King
COMMISSIONER