This disputed matter, over the payment of long service leave, was referred to the Commission by the Acting Secretary for Labour, Mr. J.K. Noonan, in accordance with the provisions of Section 13, subsection (2) of the Long Service Leave Act 1976 (as amended).

The matter was referred to me in accordance with the provisions of Section 15(e) of the Industrial Relations Act 1984, for determination.

I extended an invitation, to attend the hearing, to Mr. J. Wyton, Industrial Officer for the Department of Labour and Industry who was the investigating officer in this matter, to give factual evidence in relation to his investigation.

The dispute between Mrs. J.S. Briggs, the employee and Matron of the Derwent Court Nursing Home, and Mr. J.G. Alexander, the proprietor of the Nursing Home, centred around whether the employee had her employment terminated by the employer, or whether by her own actions the employee terminated her services.

The Long Service Leave Act 1976 (as amended), grants an entitlement to pro-rata long service leave to an employee who has completed seven years but has not completed fifteen years continuous employment with his or her employer in the following circumstances:

"(a) an employee who attains the age of retirement;

(b) an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment;

(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; and

(d) an employee whose employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee."

Mrs. Briggs, representing herself in this matter, relied on (d) above to support her case.

Mr. W. FitzGerald of the Tasmanian Chamber of Industries represented the proprietor of the Derwent Court Nursing Home, Mr. J.G. Alexander.

The matter was unusual, to say the least, because of conflicting evidence, assertions and personal opinions that permeated the case.

However, the following points did emerge as the facts:

• This long service leave dispute and investigation comes within the Long Service Leave Act, 1976.

• The employee was employed as Matron at the Derwent Court Nursing Home, 20 Fitzroy Place, Dynnyrne and the proprietor is Mr. J.G. Alexander.

• The employee presented the employer with a list of requirements for his attention.

• The employer arranged with the employee a meeting for Thursday 8 August 1985 at 11 a.m. to discuss the list of requirements.

• The meeting never took place.

• The employee had some time off work to attend a personal matter.

• The employee informed the other employees who were in the dining room for morning lunch that she would be back within the hour.

• Some time later, the employee returned to the Nursing Home.

• The Manager made contact with the employee after her return by calling her on the intercom system.

• The conversation that took place was as follows:

  Alexander: "It is Jeffrey here. Are you looking for the sack?"

  Briggs: "Yes"

  Alexander: "Are you leaving now or in two weeks?"

  Briggs: "Now".

  Alexander: "I want you off the premises now".

  This terminated the conversation.

• The employee made application to the employer on 27 August 1985 for accrued long service leave.

• The employer declined to pay the pro rata long service leave as he believed the employee had terminated her own services.

Mr. FitzGerald of the Tasmanian Chamber of Industries, representing the employer, had this to say in his final submissions:

MR. FITZGERALD

"It appears from our cross-examination, that Mrs. Briggs is in agreement with regard to the account of the conversation leading to her resignation.

And in my submission, in essence that is the only issue to be determined by you.

It is whether the conversation can be taken to be a positive act of termination on the part of Mr. Alexander as the employer, or a resignation on the part of Mrs. Briggs, the employee.

We did of course look at the evidence which goes to explain the background of the situation of Mrs. Briggs' resignation, and I would suggest that that is irrelevant in determining or in assisting why Mrs. Briggs took this action.

However, I would suggest that the issue to be determined is in respect to the words used, which we have already discussed at great length."

(Transcript pages 60-61).

Whilst I agree with Mr. FitzGerald that I should closely examine the conversation between the employer and the employee that lead to the employee leaving her place of employment, nevertheless, to put this matter in its full context I need to also touch upon events immediately prior to the conversation taking place.

Mrs. Briggs (the employee) and Mr. Alexander (the employer) had arranged a meeting for 11 a.m. on 8 August 1985, to discuss matters raised by the employee the previous day.

Mrs. Briggs stated that when she turned up at 11 a.m. for the meeting she did not find Mr. Alexander in his office. She then left the Nursing Home to attend to a private matter for which she had an appointment at 11.30 a.m.

Mr. Alexander, whilst not being able to establish his whereabouts at precisely 11 a.m., maintained that he was on the premises and that Mrs. Briggs did not keep the appointment.

Conflicting evidence surrounded this point, however, one thing is certain, the meeting never took place.

Mr. Alexander, presuming Mrs. Briggs had returned to the Nursing Home after noticing her car in the car park, and believing that she had not kept the arranged appointment, contacted her, and the following conversation took place.

Alexander: "It is Jeffrey here. Are you looking for the sack?"

Briggs: "Yes"

Alexander: "Are you leaving now or in two weeks?"

Briggs: "Now".

Alexander: "I want you off the premises now".

After the conversation, Mrs. Briggs submitted that she collected a couple of books that she had in the office and went and told her husband (an employee of the nursing home) and other staff members that she had just been dismissed and that she was going home.

During the hearing I asked Mr. Alexander why did he ring up Mrs. Briggs and say - "Are you looking for the sack?" - and what was going through his mind when he rang her up and spoke those words.

He responded by saying -

MR. ALEXANDER: "I was annoyed at that time because I had been stood up.

COMMISSIONER WATLING: Stood up where?

MR. ALEXANDER: On the appointment, that Mrs. Briggs had not kept the appointment and I think it was just a question seeking a reason or an apology for not having kept the appointment.

COMMISSIONER WATLING: Yes. We've heard evidence though that the appointment was kept at 11 o'clock. Mrs. Briggs went to your office and no-one was there and so it probably harps back to the important question that we were discussing earlier.

So your annoyance may not have been well founded if Mrs. Briggs had gone to the office at 11 o'clock and not found you there. She may have well kept the appointment.

MR. ALEXANDER: Yes, she could have, if I wasn't there precisely at 11 o'clock, yes.

COMMISSIONER WATLING: But nevertheless, the feeling in you mind at the time when you uttered those words, "Are you looking for the sack?" was one of annoyance?

MR. ALEXANDER: Yes, definitely, yes. I was looking for an explanation for the appointment not being kept."

(Transcript page 41)

Asked how Mrs. Briggs was supposed to interpret from the words "Are you looking for the sack?" that Mr. Alexander wanted an explanation as to why she purportedly did not turn up to the appointment, Mr. Alexander said -

MR. ALEXANDER: Well, Mr. Commissioner, if I were in the same position and my employer said to me "Are you looking for the sack" and I had stood him up, left the premises, not kept an appointment, I think I'd be thinking "I'm in serious trouble. I had better explain myself."

(Transcript page 42)

I asked Mrs. Briggs why she answered "Yes" to the question put to her by Mr. Alexander; she answered in the following manner:

MRS. BRIGGS: "I don't know. I'm a very happy-go-lucky type of person. I don't think it was the first time I had been given the sack from acting the fool.

You know, I think it was just a normal reaction. If someone said, "Do you want the sack?", you say "Yes".

I mean I had no reason to get the sack, so why was I worried about it?"

(Transcript page 21)

It was put to me by the employer representative that the form of words posed as a question by Mr. Alexander could not be construed as an act of termination and that the positive act of termination was on the part of the employee, therefore, she should not be entitled to pro-rata long service leave.

Whilst recognising there are exceptions, nevertheless, in normal circumstances if an employee wishes to terminate his or her employment, that person would approach the employer and tender their resignation.

Mrs. Briggs maintained she had no reason to get the sack and it was obvious that she did not approach the employer to resign.

Mrs. Briggs believed that the employer was not serious when posing the said question to her and it was not until the conversation had concluded that she felt the employer was not joking.

This point was disputed by Mr. Alexander who was of the view that it was not a reasonable position for Mrs. Briggs to adopt because as Mr. Alexander stated "...I was quite annoyed to the extent that apparently I was yelling." (Transcript page 43).

It must be remembered that the initial move to alter the contract of employment came from the employer in the form of a question to the employee.

On the employer's own admission, his approach to the employee emanated from his annoyance at being purportedly "stood up" by the employee.

I do not know how the employee was supposed to interpret from the question put to her by the employer, that she was expected to explain and/or apologise for her purported non-attendance at a meeting arranged for 11 a.m. on Thursday 8 August 1985.

This, I believe, was an unreasonable expectation on the part of the employer.

Even though the employer maintained that he did not intend termination the employee's services by using the said words, at no stage did he explain to the employee what was meant by the said question, or the reasoning behind it.

In answer to a question from Mr. FitzGerald, Mr. Alexander said he was surprised with Mrs. Briggs' response to the question however, he made no attempt to retrieve the situation when it must have been obvious to him that the employee had interpreted the question in a different manner to that which he believed was the real motive for asking the question.

For a person that did not want to terminate the employee's services and who was only seeking an explanation, I find it hard to reconcile that he would then terminate the conversation with the words "I want you off the premises now".

After considering all the relevant material associated with this matter, I am not convinced that the answer given by Mrs. Briggs to the employer's question could be construed as a positive act of termination on her part and I believe the employer, through his actions, has effectively terminated the employee's services.

Having arrived at that conclusion, I am of the opinion that Mrs. Briggs should be entitled to pro-rata long service leave and I decide accordingly.

During the course of the hearing some discussion took place about the Certificate of Service completed by Mrs. Briggs, however, the parties agreed that the operative date of employment appearing on the document signed by Mrs. Briggs was appropriate for the purpose of determining the length of service.

The gross salary being paid to Mrs. Briggs was not in dispute by either party.

The Order giving effect to this decision is attached.

R.J. Watling
COMMISSIONER