T5104
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Peter Geoffrey Crawford and Alec Purves (trading as Purves Fisheries)
Long service leave dispute - pro rata entitlement to payment - illness - domestic or other pressing necessity REASONS FOR DECISION This dispute relates to a claim for a payment for pro rata long service leave made by Mr Peter Geoffrey Crawford, an ex-employee of Mr Alec Purves (trading as Purves Fisheries) (the employer) which has been referred to the Commission pursuant to section 13(2) of the Long Service Leave Act 1976 (the Act). The dispute follows the employer's rejection of the claim by Mr Crawford that he terminated his employment with Purves Fisheries -
Copies of the report and supporting documents prepared by the Industrial Relations Branch of the Department of Industrial Relations, Vocational Education and Training, in accordance with Section 13 of the Long Service Leave Act 1976, had been made available to the parties and to the Commission. A small number of corrections was made to the factual content of the material, which was accepted by both the employer and the employee and the author of the report as being a reasonably accurate record of the facts and deemed to form part of the application. Mr Crawford commenced employment with Sevrup Fisheries Pty Ltd as a technician on 13 December 1985 with duties at the Springfield and Bridport fresh water fish farms/hatcheries. It was agreed that this work was award free. Within a short period, approximately two weeks, he was put in charge of the Springfield site. He and his family occupied a 3-bedroom house on the site from the time he commenced employment there. In December 1991 another employee, Mr I Cameron, was appointed as Manager of the Bridport and Springfield sites and he occupied a 2-bedroom house which was also on the Springfield site. Mr Crawford gave one week's notice of his intention to terminate his employment with Purves Fisheries (being the new employer) with effect from the close of business on 28 June 1993. On 22 March 1994, Mr Crawford sought the assistance of the Department in making a claim for a pro rata long service leave payment which, according to the report, was based on two reasons which were linked:
From his statements and evidence it can be found that Mr Crawford felt that his employer must have been aware that he had never agreed to live permanently on the Springfield hatchery site. Mr Purves considered that as part of his employment contract, Mr Crawford was required to live on site because the ponds have alarms linked to the water levels in the ponds. His statement contained the comment that it was never a consideration that Mr Crawford would have a job if he did not live on the property. Mr Crawford said that for the first four years of his employment at the hatchery he had enjoyed a good working relationship with Mr Purves. In mid to late 1989 Mr Crawford claimed that he was satisfied with his conditions; he had achieved an increase in salary and the house rent was dropped. Subsequently this relationship started to deteriorate due to continuing disagreements with his employer and, it would appear, to his view that his employer did not appreciate his dedication and skill. He claimed his employer misrepresented a statement made by him and accused him of trouble-making. Mr Crawford said he tried to find alternative employment but failed and he said he then tried to put all his problems behind him and "make the best of working" for Mr Purves. He claimed this was a mistake however, and by 1992 he was beginning to feel a lot of anger and was getting badly depressed. In December 1991, when Mr Cameron was appointed overall manager, according to Mr Crawford's statement "things had been building up"; he was not "happy about the house we were living in and the facilities on the property". Mr Crawford claimed the house was in poor condition and his wife wanted them to leave the property and get their own home. Mr Purves acknowledged that effectively Mr Crawford had been demoted when Mr Cameron was appointed and it was conceded that the employer/employee relationship had broken down over a period of a few years. Mr Crawford agreed that the breakdown "had developed into bitterness" although he stressed that this was not because of Mr Cameron's appointment. In November 1992 Mr Crawford sought medical attention because he claimed he was suffering from stress and depression resulting from the fact that he was unhappy with his work situation and the fact that there was no award or industrial agreement to cover his "industry". He also claimed his wife had found it difficult to resume her nursing career. Mr Crawford was also concerned about the amount of weekend work required of him and copies of correspondence between the employer and employee in March 1993 show a clear difference of opinion as to the amount of weekend work likely to be required, and whether it would be treated as paid time or compensated by way of time off in lieu of payment. Mr Crawford's initial refusal to work on the weekend of 20-21 March 1993 unless paid brought a response from the employer that unless the weekend was worked on the usual basis of time off in lieu it would not be possible to continue his employment. Mr Crawford said that in April 1993, at a meeting with Mr Purves, together with their representatives, he had made it quite plain to his employer that he did not want an agreement which required him to live on the Springfield property. He and his wife had bought a house in Scottsdale in August 1991. However, it is clear that the condition of the Springfield house was a major topic of discussion at the meeting. Mr Purves said he had agreed to do all reasonable repairs to the house. He maintained that Mr Crawford had never at any time made him aware that Mrs Crawford was going to leave the property and take the children with her. However, he did know that Mr Crawford had not been happy with the job, his salary, the house and living on the property. An excerpt from Mr Crawford's statement of 22 March 1994 relating to the April 1993 meeting contains the following, which commences with a reference to his concern about the Springfield property:
During the previous eighteen months to two years Mr Crawford had made a number of applications for employment elsewhere and in June 1993 was successful in obtaining a seasonal position with Edgell Birdseye which, together with other work, would produce higher annual earnings than his employment with Purves Fisheries. Mr Crawford said that the difficult conditions affecting his family life had applied since 1991. He claimed he had tried to improve his conditions and to resolve the problems he was experiencing but had failed. He thought he had no choice but to leave for the sake of his marriage, his general temperament and his health. He was not asked by his employer for a reason for leaving and he had not offered a reason. When he was asked during his evidence-in-chief what he meant by "improve my conditions", he replied:
When asked in what order those factors were rated, he said:
Although there was some dispute about the degree to which Mr Crawford was or was not satisfied with the house, Mr Purves claimed that at no time had Mr Crawford given any indication of the alleged domestic difficulties other than the request to live off site. It was argued that if Mr Crawford had been faced with such difficulties he should have given the employer a chance to correct any problems. This has to be seen in the context of details provided to the Department by Mr Purves which contains the following:
The employer also maintained that no indication had been given to him that stress or depression were a problem in relation to Mr Crawford's employment. Mr Crawford provided medical reports from his local doctor (Dr Wright) which detailed the reasons for his, Mr Crawford's, visits commencing in November 1992. Dr Wright reported that when he saw him on 16 November 1992, Mr Crawford was significantly depressed and had admitted having suicidal thoughts. He was angry about his work situation and he felt he had been a failure to his family. Later that year, Dr Wright reported, he seemed to be coping better with the situation. In March 1993 other doctors in Dr Wright's practice saw Mr Crawford who it was considered might have been suffering from a peptic ulcer, but an endoscopy revealed some mild prepyloric gastritis which it was thought might have been "triggered off by the stressful situation at work". Whilst the option of leaving work was considered as a means of relieving these symptoms, Dr Wright did not advise him to do so; he said he usually preferred to allow the patient to make such a decision. Mr Crawford was reviewed on 26 March 1993 and he was found to be feeling much better. He was not seen again until 24 June 1993, when he presented for a medical examination prior to commencing employment at Edgell Birdseye. For the employer, it was stressed that the doctor had not advised Mr Crawford to leave his employment; he had simply suggested that leaving work would be an option to help relieve these symptoms. Mr Crawford therefore was not compelled to leave his employment for health reasons. The use of section 8(3)(b), termination on account of illness, could not be substantiated, Mr Targett said, because the earliest Mr Crawford had sought medical assistance in relation to his condition, which, it was emphasised, was not categorically tied to his employment, was in November 1992 and it had been admitted that he had been seeking alternative employment since 1991. Consequently illness could not be regarded as justification for the termination. The Commission was reminded that the medical reports tendered specifically noted that the doctor had not advised Mr Crawford to terminate his employment. In relation to section 8(3)(c), termination on account of incapacity or domestic or pressing necessity, Mr Targett referred to the criteria set out by the Industrial Commission of New South Wales in Court Session in the Computer Sciences Case 1983. He suggested that Mr Crawford had decided, after he had resigned, that his wife's threat to leave him was one of the reasons for termination. Mr Targett added that if that had been the sole contributing factor then he, probably, would have advised the employer to pay the long service leave. However, it was argued that since Mr Crawford had decided to look for another job as early as 1991 and Mrs Crawford's threat to leave had not been made until 1993, that threat could not be regarded as the reason the decision was made to resign. Mr Targett referred to Mr Crawford's evidence during which he claimed that he did not want to "end up on the dole" and that therefore he wanted a job to go to before he would resign. In terms of the Computer Sciences Case criteria, Mr Targett submitted that the real and motivating reason for Mr Crawford leaving his employment went back to the period 1989 to 1991 when the employer/employee relationship deteriorated. There was no element of compulsion involved and Mr Crawford had said in evidence that he was going to stay with Purves Fisheries until he found another job. Mr Targett submitted that the acknowledged bitterness that Mr Crawford felt towards Mr Purves was the real reason why Mr Crawford terminated his employment and that he only did that when the job at Edgell Birdseye became available. Mr Devlin, representing Mr Crawford, agreed that Mr Crawford's resignation had been brewing for some time resulting in the problems Mr Crawford experienced with his health and his marital difficulties. He had tried to find solutions to those problems other than by resigning, but to no avail. He eventually made the final decision to leave in the hope, Mr Devlin said, that he would save his marriage and improve his financial position. Conclusion It appears to me that Mr Crawford was concerned, at least during the last five years of his employment with Purves Fisheries, to improve his working conditions, particularly his rate of pay and other conditions. This concern was heightened following the appointment of Mr Cameron as manager of the two sites. At about the same time it seems, pressure started to build up within the Crawford domestic environment over the family's living conditions. Mr Crawford began applying for other positions, obviously in order to get off the Springfield site and to improve his conditions generally. During the last year of his employment he suffered some illness which his doctor felt could have been related to his working environment. In his evidence, Mr Crawford listed a number of reasons why he wanted to improve his employment conditions but his statement that he wanted to live off-site for the sake of his marriage carries substantial weight in my opinion. When asked by Mr Targett whether he had anything further which he could put to justify his claim in accordance with the Act, Mr Crawford said:
I am in no doubt that such a circumstance falls within the ambit of "domestic or other pressing necessity". I consider that the existence of a number of other factors which might have been influencing Mr Crawford over that extended period of time does not diminish the fact that Mr Crawford felt he had to do whatever was possible to save his marriage. The fact that he did not resign until he had another job to go to in my view is a normal response to the situation in which Mr Crawford found himself. He was not deluged with job offers; he took, it would appear, the first offer made to him and left an industry which he claimed he had trained for specifically to move to unskilled work. In fact under cross-examination Mr Crawford said he would have left Purves Fisheries anyway in order to move off the site, but he did not want to become a social security statistic. Given the evidence presented by Mr Crawford and his responses to questioning, I am in no doubt that because his wife had told him she was going to take the children and live elsewhere if he remained at the site, Mr Crawford felt it imperative, for the sake of his marriage, that he should terminate his employment with Purves Fisheries. I have no doubt, as well, that his work situation was also causing him stress and depression, although according to his doctor, this had diminished to a certain extent when he saw Mr Crawford early in December 1992. Notwithstanding that I find it difficult to accept Mr Crawford's claim that he was entitled to pro rata long service leave because he was suffering an illness of such a nature as to justify the termination of his employment. He certainly had experienced some disability which may have been related to his working conditions. However, in my opinion, that illness alone, on the material put, does not justify recognition under section 8(3)(b). On the other hand, I consider that Mr Crawford's claim that the reasons for terminating his employment are covered by the provisions of section 8(3)(c), i.e. termination "on account of incapacity or domestic or other pressing necessity", is justified. The fact that Mr Crawford did not notify his employer of his reason for leaving at the time he gave notice does not invalidate his claim. Nor does the existence of other factors at work in his employment environment affect his claim because in my opinion Mr Crawford's primary reason for leaving Purves Fisheries was his fear that his marriage would be in danger if he remained. The fact that he began looking for alternative employment in 1991 is not fatal to Mr Crawford's claim that he left his employment in 1993 because he felt his marriage was in jeopardy. In all of the circumstances I consider that Peter Geoffrey Crawford, having completed more than seven years continuous employment with the Sevrup Fisheries Pty Ltd and Purves Fisheries, has satisfied the claim that in accordance with Section 8(3)(c) of the Long Service Leave Act 1976 he is entitled to receive a pro rata long service leave payment of an amount of $3111.33 and, in accordance with Section 13(3) of that Act, I order Mr A Purves trading as Purves Fisheries to pay that sum to Mr Crawford.
F. D. Westwood Appearances: Date and place of hearing: |