TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.15 referral of long service leave dispute

Glenda Margaret Keenan
(T.4626 of 1993)

and

Minister administering the Tasmanian State Service Act 1984

Long service leave dispute - pro rata entitlement - domestic or other pressing necessity - application rejected

REASONS FOR DECISION

This hearing arises out of an unresolved dispute under section 11 of the State Employees (Long Service Leave) Act 1950 (the Act).

A report was submitted by the Secretary of the Department of Employment, Industrial Relations and Training to the President of the Commission on 12 October, 1993.

The President, pursuant to section 15(1)(e) of the Industrial Relations Act 1984, referred the matter to me for hearing and determination under the provisions of the State Employees (Long Service Leave) Act 1950.

The applicant in this matter is Mrs Glenda Margaret Keenan (the employee) and the employer is the Minister administering the Tasmanian State Service Act 1984 (the employer).

The employee commenced employment with the Department of Community Services (now Department of Community and Health Services) (the Department) on 14 February, 1983, and terminated her employment on 19 August, 1992, thus making her continuous employment period 9 years and 6 months. The issue of whether the employee had continuous employment and the method of calculating any potential claim was not contested by the employer in this matter. Indeed the Commission was informed that the parties were agreed on these aspects of the application.

Resignation

The employee gave her reasons for resigning in a letter of termination to Mr B Gilkes, Acting Manager, Disability and Community Support Services - North, dated 5 August 1992. It states inter alia:

"Due to the lack of full time permanent positions available to social trainers at Respite, it has been necessary for myself, to seek employment elsewhere.

The recent appointment of an aide to backfill a full time line at Raspite(sic), is not only an insult to qualified staff but an industrial matter. Community Services Department agreed to replace the sisters at Respite, with qualified staff ie. social trainers. It seems that staff with qualifications and years of experience to offer the service are no longer being utilised to their fullest advantage.

I therefore tender my resignation, effective 19th August, 1992."

In response to her letter of resignation Robin Bellchambers, Team Leader, Human Resources Branch, Department of Community Services, wrote to the employee on 12 August, 1992, accepting the resignation with effect from the close of business on 19 August, 1992. She went on to say in that correspondence -

"Due to your services being less than 10 years you are not entitled to payment of an allowance in lieu of long service leave."

In response to that letter the employee, on 30 August, 1992, wrote -

"Re your letter of 12th. August, 1992 and you reference to an allowance in lieu of Long Service Leave. I have since been in contact with the union and they have supplied me with the relevant part of the act concerning this and it clearly states in excess of seven years service. I had, at the time of my resignation completed 9 years 6 months service. As there were no full time or permanent positions available within Respite, the last temporary full time position being offered to an aide, therefore, it left no alternative for myself but to seek employment elsewhere. In view of these circumstances I feel that I am entitled to payment of an allowance in lieu of Long Service Leave.

I look forward to your early reply."

Some five weeks after writing that letter and in response to another letter under the signature of Robin Bellchambers, the employee wrote another letter to Robin Bellchambers on 9 September, 1992, which states in part -

"Your reference to my resignation not being due to pressing or domestic necessity, I would have to question your ability to make such valued assumptions regarding my personal situation.

As a single parent with mortgage payments to meet and self education fees to pay and a daughter to educate through college and university, I feel the need for a permanent full time position, something Community Services were not offering, definitely a necessity.

I therefore feel I am entitled to payment of an allowance in lieu of pro rata long service leave."

Its not my intention to deal with all the other correspondence that changed hands suffice to say that the employer under the hand of Mr John King, Director, Corporate Services, (a "prescribed authority" within the meaning of the Act), rejected the request in the following terms -

"In order for an employee with less than 10 years service to be eligible for pro rata long service leave Section 7(1)(ba) of the State Employees' (sic) (Long Service Leave) Act requires that the employee:

"resigns from his employment on account of domestic of (sic) other pressing necessity, that the prescribed authority certifies, in writing, is, in his opinion, of such a nature as to justify the employee's resignation;"

Before resigning, the employee had gained a full time position (38 hours per week) as a Senior Residential Services Worker with Multicap. This position was available to her on resigning her employment with the Department.

Consideration

My task in this matter is to determine whether or not the employee's resignation was on account of 'domestic' or 'other pressing necessity' (in this regard I accept the decision of the Full Bench of the New South Wales Industrial Commission, Clancy v David Jones Limited, McKeon, Beattie and Perrignon JJ, September 20 1965) and I must also satisfy myself that the circumstances were of such a nature as to justify the employee's resignation.

I accept that economic necessity can amount to 'pressing necessity' depending on the circumstances (Eyles v. Cook and Others (1967) 13 E.L.R. 42, Crennan v. Oliver Furniture Pty. Ltd. (1962) 17 I.I.B. 799 (Victorian Appeals Court).

In this matter the employee has claimed 'domestic necessity' as the base for her submission.

During the course of the hearing virtually no evidence was put to me regarding the 'domestic necessity' that required the employee to resign her position with the Department, however, there was a limited amount of evidence associated with her financial/economic necessity and this only related to her mortgage repayments.

As I was not shown the total amount of income against the total amount of expenditure, it makes it nearly impossible for me to establish the purported financial hardship that the employee was experiencing, let alone that it was of such a nature as to justify the employee's resignation.

When asked by the Commission what was the motivating factor for terminating her employment the employee stated -

1. the need for full time employment to support herself and her daughter without losing her home and what she had worked for, and

2. she needed the extra money to keep up her lifestyle even though it was not grand.

The Commission asked the employee what the consequences would have been had she not terminated her employment and the indication was that she may have to sell her home some time in the future, although at the time of resignation she was still able to meet her mortgage repayments.

In this matter the onus was on the applicant to show that a real and genuine problem existed and that had she not resigned there would have followed some particular undesirable consequence.

In my view the employee wanted to increase her own level of remuneration by seeking a job at a higher level and/or one that provided full time employment. On her own admission she had endeavoured to do this for a few years.

Commendable as that may be, nevertheless, it represents the exercise of choice between two sets of circumstances, as opposed to a compelling situation.

When exercising that choice a prudent worker would weigh up the advantages and disadvantages of changing jobs. It would seem obvious in this case that one of the disadvantages would be foregoing the right to long service leave that would have been otherwise due in six months. On the other hand the advantages may be (a) an appointment to a higher classification (b) higher remuneration and (c) no requirement to work shift work.

I have considered all the evidence presented during the course of the hearing and the report (including attachments), forwarded to the Commission by the Secretary of the Department of Employment, Industrial Relations and Training, and for the reasons mentioned in this decision I am of the view that this application does not satisfy the requirements of 7(1)(ba) of the State Employees (Long Service Leave) Act 1950.

Therefore the application is dismissed.

R J Watling
COMMISSIONER

Appearances:
Mrs G M Keenan representing herself.
Miss K Pammenter for the Minister administering the Tasmanian State Service Act 1984.
Mr G Williams and Mr A Flood of the Department of Employment, Industrial Relations and Training.

Date and place of hearing:
1993
Oct 27
Launceston Tas