This matter comes before the Commission pursuant to Section 15 (1) (e) of the Industrial Relations Act 1984. This is the head of power which authorises the Commission to deal with long service leave disputes. In addition to authority under this Act, there exists complementary legislative power to refer such matters to the Commission in the Long Service Leave Act 1976; the relevant part of which is to be found in Section 13 (2). It states:

"(1) ......

(2) Where a dispute referred to in subsection (1) is not resolved as a consequence of an investigation by the Secretary [for Labour], the dispute shall be heard and determined, as prescribed, by a Commissioner.

(3) Subject to subsection (4), where the determination of a Commissioner under this Section on the hearing of a dispute requires the payment of a sum of money by an employer to an employee, the Commissioner shall, without the necessity of any further application, order the employer to pay that sum to the employee.

(4) Where an appeal is brought under Section 14 against the determination of a Commissioner under this Section on the hearing of a dispute an order of the kind referred to in subsection (3) that is made by him shall not take effect until the determination or abandonment of the appeal."

Prior to the establishment of this Commission on 1 January 1985, unresolved disputes relating to long service leave were heard and determined by the Secretary for Labour with recourse to a magistrate. In those circumstances proceedings before a magistrate were in the nature of a re-hearing of the entire dispute.

The circumstances of this dispute are as follows:-

Mr. Carr had been in the employ of orchardist, Mr. W. G. James, since 9 July 1980.

On or about 21 March 1985, Mr. Carr terminated his employment (without notice) due to what appears to be an insidious arthritic condition which may have contributed directly or indirectly to a state of anxiety for which he had sought and obtained frequent medical attention.

It would appear also that the relationship between Mr. Carr and his employer, Mr. James, had been quite good for many years. However, it was admitted by Mr. Carr that there had been some deterioration in that relationship over the last two years of his employment. This may have been due to the amount of time off Mr. Carr had been allowed, and the consequent necessity for Mr. James to obtain temporary relief.

There seemed to be no issue between the parties that the eroding employment relationship was more the fault of Mr. Carr than Mr. James. However, the reason for this was given to be Mr. Carr's ill health and his concern for his future well-being.

In the event, Mr. Carr, on terminating his employment with Mr. James, was accepted for and remained on Commonwealth sickness benefit. This has been the situation for some 13 months since leaving his job.

However the Commission was informed that he may now be able to undertake different duties; but more for therapeutic reasons than recovery from his ailments.

This particular dispute arose when Mr. Carr, after terminating his employment, subsequently requested payment for pro rata long service leave and his request was refused. The reason given by Mr. James for refusing to grant any long service leave payment was that Mr. Carr terminated his own employment, and that in his opinion the reasons given by Mr. Carr for resigning did not constitute incapacity or domestic or other pressing necessity of such a nature as to justify termination on those grounds.

The matter was referred to the Secretary for Labour who caused the circumstances of the dispute to be investigated. However, Department of Labour and Industry intervention failed to resolve the issue. Before bringing the matter to hearing I requested that the D.L.I. inspecting officer attend on the day set aside for consideration of this matter for the purpose of giving a factual account of his investigations. In this way he would be regarded as amicus curiae. His evidence would be given on oath and be subject to cross-examination by both sides.

I can say now that Mr. Armsby's evidence was most helpful in coming to a decision on this matter. Indeed the chronology of relevant events recited by Mr. Armsby and complemented by Mr. McLachlan have made determination of this matter a great deal easier than might otherwise have been the case.

The only conflicting evidentiary information came from Mr. Carr's doctor, who issued two certificates on the same day. Both certificates identified the same diagnosis. However, one certificate stated that Mr. Carr was suffering from anxiety, depression and tension headaches and that his incapacity commenced during 1984. There was no finite period stated on the certificate during which he would be unable to work. It was in fact open-ended. The certificate simply concluded "... and will be unfit for duty".

The second certificate stated:

"I certify that on 21 March 1985 I examined B. Carr who in my opinion is suffering from anxiety, depression and tension headaches and will be unfit for duty up to and including the 21^st March 85. He states that the incapacity commenced on the 20^th March 85."

However, the Secretary for Labour contacted the medical practitioner concerned seeking answers to a number of questions posed by him. In responding to that questionnaire, the doctor stated, inter alia:

"Mr. Carr was seen on 21^st March 1985. He had been suffering from anxiety, depression and tension headaches.

As a result of this he ceased employment on 21^st March 1985.

His anxiety and depression commenced during 1984."

And in response to another question directed towards Mr. Carr's condition, the doctor replied:

"On 21^st March 85 he [Mr. Carr] presented complaining of being irritable and cranky, especially at work. I described him on that occasion as suffering from a depressive anxiety state, the major symptom of which was tension headaches."

On being asked to provide details of the frequency of Mr. Carr's visits to his surgery, his medical practitioner replied:

"He presented for assorted problems on two occasions in 1977, twice in 1978, made 4 visits in 1979, none in 1980, once in 1981, 1982 and 1983.

He was seen twice during 1984, and in 1985 has attended on 6 occasions prior to July and on 5 occasions since."

Mr. Carr therefore consulted his doctor on no less that 22 occasions between 1977 and 1986.

The Secretary for Labour again wrote to Mr. Carr's doctor seeking answers to a further series of questions. The relevant transcript excerpt demonstrates the lengths to which the secretary went in order to ascertain the facts surrounding Mr. Carr's illness.

"Mr Armsby:

The Department required further answers and we wrote another letter dated 5 February 1986. I will read those responses. Firstly:

`If Mr. Carr had consulted you prior to 21 March 1985 (the day he terminated his employment) would you have advised him to terminate his employment on medical grounds?'

The answer to that was:

`No, I would have advised him to take sick leave whilst he received treatment.'

Question 2:

`Did you issue him with certification necessary to enable Mr. Carr to receive [Commonwealth] sickness benefits?'

He answered:

Yes, on 8/5/85.'

And:

`Were most of Mr. Carr's previous visits, (especially throughout 1984 and 1985) also due to depressive anxiety symptoms you describe in your letter?'

Answer:

`During 1984 and up till the 31.3.85 four visits were made and three of these involved dealing with tension headaches.'

The doctor concluded by saying:

I trust this information clarifies the situation.

It is certainly a matter for regret that Mr. Carr acted first and thought second in this matter, but that is the way it transpired.'"

Transcript, p.22/23

Mr. Armsby then informed the Commission that the Department had received a certificate from the Commonwealth Department of Security stating that Mr. Carr had been paid sickness benefits from 28 March 1985 to the date of hearing (30.4.86).

He concluded his evidence by explaining to the Commission that the amount payable to Mr. Carr in the event his application succeeded would be $2,777.28, representing 12.6011 weeks at $220.40 per week.

In reply to a question from me, Mr. Armsby agreed that had Mr. Carr not terminated his employment but opted instead for sick leave without pay - assuming his employer would have agreed to preserve his employment for 13 months at least - he would have qualified for long service leave in any case in July 1985.

Mr. James was represented in this matter by Mr. Durkin, who summed up the position regarding Mr. Carr's application quite succinctly when he said:

"The case appears to rest on two grounds, one of ill health with the supporting argument being a break-down in the employment relationship causing termination.

As we understand it the civil onus of proof can be found in a number of long service leave cases. Basically it is a subjective test: (1) What was in the employee's mind at the time that he resigned?

As we understand it he was of the belief that his health had deteriorated to such a stage that he could no longer work. But authorities also go on to say that despite the general subjective test, the courts have regard to objective considerations such as what a reasonable man might feel."

Transcript, p.35

He then referred the Commission to some material extracted from learned dissertations relating to application of the "subjective test" (i.e. what was in the mind of the individual at the time), and contrasted that test with the "objective test" (i.e. what a reasonable man would have done).

While not quarrelling with Mr. Carr's employment history, Mr. Durkin argued that he was a moody person who simply left his employment following a dispute over the cost of a certain kind of paint. He denied any break-down in the employer/employee relationship. Mr. Durkin submitted in part:

"We think maybe that his problem was of a personal nature. It is probably why he left work on the day.

But the argument certainly would not necessitate terminating his employment.

A number of times in the past the employee did display moods. He became fed up, but was allowed to go home - even to the extent of causing concern amongst other employees, namely special treatment being given."

Transcript, p. 37

Mr. Durkin asserted that Mr. Carr could gain no assistance from the legislative provision that allows payment for pro rata long service leave in cases where an employee terminates his own employment for reasons of domestic necessity. Although this was one ground relied upon by Mr. McLachlan (for Mr. Carr), it was not the only ground upon which the claim rested. Had it been so then clearly the applicant would have been in some difficulty had he attempted to make out a case for that reason alone.

In summing up his case Mr. Durkin argued that:

1. There was no illness to justify termination at all .... "and there is not other contributing factor".

2. While sympathising with Mr. Carr having to forfeit long service leave after almost 15 years' service, the fact remains that a case must be made out for payment in lieu. And as neither sub-clause 8 (3) (b) of the Long Service Leave Act 1976, nor sub-clause 8 (3) (c) of the same Act may be called in aid, the claim must fail. The relevant sub-clauses referred to provide as follows:

"8(1)  Subject to this Act, an employee is entitled to long service leave on ordinary pay in respect of continuous employment with one and the same employer.

(2)   (a) .....

(b) in the case of an employee to whom this paragraph applies by virtue of sub-section (3), who has completed 7 years but has not completed 15 years continuous employment with his employer, such period of long service leave as bears the same proportion to 13 weeks as the total period of the employee's continuous employment with this employer bears to 15 years.

(3)   Sub-section (2) (b) applies to:

(a) .....

(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) ....."

The foregoing is a broad resume of the facts. There were of course other matters discussed during proceedings, but the major issues between the parties were those to which I have referred.

In determining this matter I am obliged to dismiss as inappropriate any reliance put upon sub-clause (3) (b) of Clause 8 of the Long Service Leave Act. It seems to me that that particular provision can only be called in aid in circumstances where an employee has been dismissed or his services have been terminated by his employer. In this case Mr. Carr admitted to terminating his own employment.

I also find proven, grounds for reliance upon the term "domestic necessity". In this regard I must agree with Mr. Durkin that although not impossible, it would be difficult for a single person to succeed in an action of this kind if his sole reason for applying rested upon the notion of "domestic necessity".

That leaves for consideration only the question of "incapacity" and "other pressing necessity". [I regard each as a disjunctive of "domestic necessity" and therefore capable of separate consideration.]

On the facts before me I am of the opinion Mr. Carr was entitled to draw upon both options in support of his claim. I will discuss each in turn.

INCAPACITY

The noun "incapacity" has been given a number of dictionary meanings, but in the context of this case the two preferred definitions are: "lack of capacity", or "incapacity".

In Mr. Carr's case he considered himself to be lacking capacity or was otherwise incapable of performing the duties for which he had been employed for the past 15 years or thereabouts. There was ample medical evidence to demonstrate some support for the proposition that Mr. Carr had been bedevilled by an arthritic condition which probably contributed to his anxious state, his depression and his tension headaches. It was readily agreed he was moody and irritable.

His doctor certified that on or about the day he left his employment he was suffering from anxiety and depression. The doctor then added the comment:

"He decided at that stage that he should stop work. Because of his anxiety and mental state at that time he was certainly in a confused state at that time, and this may have made him make an inappropriate decision re his work future."

Reference to an inappropriate decision can only mean the decision Mr. Carr made to cease work altogether.

His medical practitioner indicated that he would have advised him to go off on sick leave while receiving treatment as an alternative to giving up his job.

Yet the same medical practitioner had provided medical certificates sufficient to justify him being unfit for work for a further 13 months. The Commonwealth Department of Social Security certificate supports this conclusion.

The question arises, therefore, did Mr. Carr make the wrong decision?

Subsequent events would suggest that he did not. At the time of the hearing he was still unable to do the work he used to do while in the employ of Mr. James, although it was said he should now attempt different work.

In retrospect, had he sought and taken his doctor's advice, he would have qualified for long service leave in his own right in July 1985. But the question remains, would his employer have "carried" him for that period? That question was not asked and was therefore not answered. But at no stage was it suggested his job would have been kept open for him indefinitely.

On balance, it would be reasonable to conclude, applying the subjective test, that the state of Mr. Carr's health was such that, in his own mind, he considered himself to be incapable of continuing in his employment. Moreover it may be that the disagreement he had with his employer on the day he terminated became the catalyst for the decision to resign.

There is no doubt that Mr. Carr had medical certificates which pronounced him unfit for duty, and he has remained medically unfit for at least 13 months.

The matter of the medical certificate that gave him one day only on 21 March 1985 and related to an alleged condition that manifested itself the day before, appears to me to be totally incongruous with the rest of the evidence, and provides no assistance in determining this issue.

I can discover nothing from a careful reading of transcript or by any other means that would suggest that the "incapacity" referred to in the Act need be of a permanent or irreversible nature; nor did the parties to these proceedings suggest otherwise.

I am therefore able to accept Mr. McLachlan's submission that, because of his physical and mental state at the time, Mr. Carr genuinely felt himself unable to continue his employment any longer and simply left without notice.

Furthermore it must be acknowledged that Mr. Carr's doctor certified him unfit for work. One certificate was open-ended. But, in all fairness, this must be contrasted with the other certificate dated the same day that gave him one day only. I have no way of knowing which certificate was given first and why two certificates were in fact given.

Suffice it to say Mr. Carr's condition did not improve until April of this year - some 13 months after leaving Mr. James' employ. In this regard I assume his open-ended certificate given on 21 March carried him through to the 28 March 1985, when he was accepted for Commonwealth sickness benefits. Alternatively, he may have obtained additional certificates from his doctor during the intervening period to 30 April 1986, or he may have obtained continuity certificates from time to time. In any event he has not worked since.

OTHER PRESSING NECESSITY

No real evidence supportive of the alternative of "other pressing necessity" was presented. What was submitted was not of sufficient weight to allow the claim on that ground.

DECISION:

On balance I am persuaded that Mr. Carr left his employment because he genuinely considered himself to be incapable of continuing his employment any longer. This was due to a fairly long period of indifferent health. I am satisfied that there was ample medical evidence (albeit somewhat convoluted) on or about 21 March 1985, to support this. Moreover, Mr. Carr's condition did not improve following his resignation. He was in fact unfit for work for a further 13 months at least. To my mind his doctor's observation that had he been consulted by Mr. Carr regarding possible termination he would have advised him to take sick leave instead was, no doubt, well meant at the time. But the question arises, would Mr. James have "carried" him for a further 13 months? Of course, had he done so, Mr. Carr would then have qualified for long service leave in July of this year.

It follows from the foregoing that I accept Mr. McLachlan's submission that Mr. Carr left his employment for reasons of incapacity.

Even when one applies the objective tests referred to by Mr. Durkin, I believe "a reasonable man" would conclude that Mr. Carr's decision to terminate his own employment was, in all the circumstances, justified at the time.

Mr. Durkin did not suggest that Mr. James would have carried Mr. Carr for the whole of his 13-month period of incapacity, which ran to a further 13 months. Nor did he indicate that alternative employment was available. However, in passing, Mr. Durkin did observe that Mr. Carr had not requested light work. He did not say light work or different work was offered or available.

But even if Mr. Carr had done so and different or light work was available, the fact remains he was pronounced medically unfit for at least a further 13 months following the date of termination, and even now is alleged to be fit only for different work.

I will therefore allow the claim for pro rata long service leave. The amount of $2,777.28 may be paid in full or in three equal instalments of $925.76.

If payment by instalments is selected, the first payment should be made not later than 1 July 1986, and the remaining payments shall become due and payable on the first day of August and the first day of September 1986 respectively.

L. A. Koerbin
PRESIDENT