TASMANIAN INDUSTRIAL COMMISSION

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

Janice Margaret Gamble
(T.5125 of 1994)

and

AG & DE Richardson Pty Ltd
(trading as Formby Removals)

Long service leave - pro rata entitlement - ill health

REASONS FOR DECISION

This is a dispute concerning the non payment of a pro rata entitlement to long service leave.

The applicant, Janice Margaret Gamble, was a former employee of A G & D E Richardson Pty Ltd (trading as Formby Removals) (the employer).

It was agreed that Mrs Gamble had 9.4401 years of full time service with the employer and that she resigned from her employment on 28 January 1994.

On 11 February 1994 Mrs Gamble placed a claim on the employer believing that she qualified for an entitlement pursuant to the pro rata provisions of Section 8(2)(b) of the Long Service Leave Act 1976 for reasons covered by Section 8(3)(b).

Mrs Gamble maintained that she had terminated her employment on account of illness and the illness was of such a nature that it justified her actions. She supported her claim with a medical certificate which was given to the employer at the time of making the claim.

The medical practitioner stated in the certificate that she had "been suffering from a stress related condition over the past 6 months or more" prior to her resignation and that he had referred her for specialist medical treatment in July 1993, "but despite this she has continued to suffer quite markedly" and he had "advised her to retire from her present employment".

The main reasons for the employer rejecting Mrs Gamble's application can be summarised as follows:

1. the stress was not a factor relevant to Mrs Gambles's employment particularly as the employer had relieved her of a number of responsibilities during the course of the calendar year 1993;

2. Mrs Gamble's illness was not "of such a nature as to justify the termination of that employment";

3. that the employer was not given an opportunity to rearrange her working evironment in such a way as to relieve her stress;

4. the employer maintained that there were other family sources of stress faced by Mrs Gamble and that her medical certificate was "an after the event" exercise aimed at gaining financial benefit which she had only discovered after leaving the job.

Even though Mrs Gamble did not supply the employer with a copy of the medical certificate until after the termination had taken place, nevertheless, this should not disentitle her to her rights assuming her reason for leaving was in fact her medical condition.

Unlike a claim for workers' compensation, there is no requirement for the illness suffered by Mrs Gamble to be one arising out of her employment in order that she be eligible for pro rata long service leave, but simply "of such nature as to justify the termination of that employment".

It is true to say that Mrs Gamble did not seek alternative work within the employer's establishment, however, I do not support the contention that no entitlement exists simply because that request was not made. Any intention of the Parliament to impose such conditions on individual contracts of service would need to be expressed in clear words to that effect.

The medical evidence was uncontested by the employer and in the absence of any other expert opinion to the contrary I believe that it is reasonably open to me to conclude -

1. that the applicant herself, supported by medical advice, had arrived at the conclusion that she could no longer continue her employment with the employer due to her illness;

2. the applicant had been undergoing specialist medical treatment commencing some 6 months prior to her termination;

3. the motivating factor for the applicant terminating her employment with the employer was based on her illness and on advice from her medical practitioner.

4. that the illness was of such a nature that it justified her termination of employment.

For all the aforementioned reasons I am going to grant the application.

As a result of that finding I hereby order, in accordance with the provisions of Section 13(3) of the Long Service Leave Act 1976, that A G & D E Richardson Pty Ltd (trading as Formby Removals) to pay to former employee, Janice Margaret Gamble, of P O Box 34E, East Devonport, 7310, the sum of $4090.70 being her pro rata long service leave entitlement. This amount is to be paid to Mrs Gamble by close of business on Friday, 12 August 1994.

R J Watling
COMMISSIONER

Appearances:
Mrs J M Gamble for herself.
Mr A Richardson for A G & D E Richardson Pty Ltd (trading as Formby Removals).
Mr E Bolton of the Department of Industrial Relations, Vocational Education and Training - Industrial Relations Branch.

Date and place of hearing:
1994
July 21
Devonport, Tas