TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.15 referral of long service leave dispute
Kevin Mark Humphries
(T.5152 of 1994)
3D Trading Pty Ltd
(trading as United Customer Electronics)
|COMMISSIONER P A IMLACH
24 August 1994
Long service leave - pro rata entitlement
REASONS FOR DECISION
This was a long service leave dispute hearing application referred to the Commission under Section 15(1)(e) of the Act by the Industrial Relations Branch of the Department of Industrial Relations, Vocational Education and Training (DIRVET).
The dispute concerned a long service leave claim by Mr Kevin Mark Humphries of Riverside on 3D Trading Pty Ltd, trading as United Customer Electronics (the Company).
At the outset it should be recorded that both parties represented themselves at the hearing and this caused severe problems with the conduct of reasonable and appropriate proceedings.
The report of Industrial Officer Damien Bingley of DIRVET was submitted to the hearing in the form of sworn evidence.
In essence Mr Bingley stated that:
both parties agreed, for the purposes of the long Service Leave Act 1976, Mr Humphries had been continuously employed from 12 September 1983 until 22 December 1993. (There had been different employers over the relevant period ending with the Company which was owned and operated by Mr and Mrs Gary Deehan)
During the relevant period the television/video and electronic repairs and servicing business at 127 Wellington Street, Launceston remained substantially the same and Mr Humphries was employed there as a television/video and electronic serviceman.
Mr Humphries' employment was terminated by Mr Deehan on 10 December 1993 because of a personality clash between Mr Deehan and Mr Humphries and not the serious and wilful misconduct of Mr Humphries.
Mr Humphries' rate of pay on termination was $542.65 per week.
Mr Humphries considered he was entitled to a long service leave payment and he accepted the DIRVET Industrial Officer's report as correct.
Mr Deehan from the bar table, disputed some key elements of Mr Bingley's statements, in particular:-
He said that the employment termination had been suspended, after amicable discussions, and then Mr Humphries took leave without pay to review his position.
There had been serious and wilful misconduct on Mr Humphries' part in that he did not accord Mr Deehan the respect he deserved as the employer: Mr Deehan said Mr Humphries had humiliated him before other staff.
In response Mr Humphries denied that there had been a settlement as to the termination and leave without pay. He believed he had been terminated.
Neither the employment termination nor the claimed leave without pay proposition had been confirmed in writing by the employer.
In the absence of any clear evidence to the contrary I am satisfied of the following facts:
Mr Humphries' employment was terminated by Mr Deehan on 10 December 1993.
There was some argument and disagreement between Mr Humphries and Mr Deehan, but not of a nature that could be established as serious and wilful misconduct on Mr Humphries' part.
Section 8(2)(b) of the Long Service Leave Act 1976 provides:-
"(b) in the case of an employee to whom this paragraph applies by virtue of subsection (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 his employer bears to 15 years."
and Section 8(3)(d) of that same Act provides that subsection 2(b) applies to:-
"(d) an employee whose employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee."
Based upon the conclusions I have reached and the specific provisions of the Long Service Leave Act 1976, quoted above, I am satisfied that Mr Humphries is entitled to a pro-rata long service payment (as set out in the calculation provided on page 6 of the DIRVET Industrial Officer's report) and I order that $4,834.20 be paid to Mr Kevin Mark Humphries by 3D Trading Pty Ltd (trading as United Customer Electronics) within fourteen days from the date of this decision.
P A Imlach
K. Humphries representing himself.
G. Deehan and C. Deehan appearing for 3D Trading Pty Ltd trading as United Customer Electronics.
Date and place of hearing: