T5156
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Steven George Withers and Industrial Transmission and Engineering Supplies Pty Ltd
Long service leave dispute - pro rata entitlement - domestic or other pressing necessity - application granted REASONS FOR DECISION This hearing arises out of an unresolved dispute, between Mr Steven George Withers (the applicant) and Industrial Transmission and Engineering Supplies Pty Ltd (the respondent), over an entitlement to the pro rata provisions of section 8(2)(b) of the Long Service Leave Act 1976 for reasons covered by section 8(3)(c). A report was submitted by the Senior Industrial Officer, Industrial Relations Division of the Department of Industrial Relations, Vocational Education and Training to the President of the Commission on 2 August 1994. The President, pursuant to section 15(1)(e) of the Industrial Relations Act 1984, referred the matter to me for hearing and determination. Mr Withers represented himself and Industrial Transmission and Engineering Supplies Pty Ltd was represented by the owner/manager, Mr Geoffrey Knott. Mr Withers commenced employment with Industrial Transmission and Engineering Supplies Pty Ltd on 1 April 1986 and terminated his employment on 16 September 1993, thus making his continuous employment 7.463 years. At the time of termination, Mr Withers gave as his reason the fact that his wife was returning to work after a period of maternity leave and he was going to take on the role of caring for his five month old son. Mr Withers and his wife had made a decision some time earlier that, given their domestic and financial situation, it would be more appropriate for Mrs Withers to return to work at the conclusion of her maternity leave. They were of the view that childcare was not an option, due to the difficulty of placing a five month old child and the expense associated with that course of action, plus, the overriding desire to have their son raised by at least one of his parents. Apart from his employment at Industrial Transmission and Engineering Supplies Pty Ltd, Mr Withers was also employed, on a casual basis, at an automotive service station at night. This work commenced on 2 April, 1992, and was to continue after Mrs Withers returned to work at the expiration of her maternity leave. The employer rejected the application for pro rata long service leave as he was of the view that Mr Withers' decision to terminate his employment was not for reasons of domestic or some other pressing necessity that was of such a nature as to justify his action. He maintained it was to better himself financially and this was not a sufficient reason to claim pro rata long service leave under the Act. A number of other issues were raised during the course of the hearing, however, I do not feel compelled to address them, as some were, in my view, irrelevant, not supported by evidence nor could they be sustantiated. This is a case where two parents held positions in the paid workforce, and a decision was required to be made about the care of their child. The options were limited. From the evidence it is clear that Mr and Mrs Withers made the decision that it was appropriate for Mr Withers to take on the role of caring for their five month old son, at least during daylight hours, and this was the prime motivating factor which necessitated Mr Withers tendering his resignation to his employer. When deciding their future and the future of their children, I believe parents have a fundamental right to choose whether or not their children will be cared for by themselves or some other person. Having considered all the evidence I have arrived at the conclusion that Mr Withers' application falls within the meaning of section 8(3)(c) of the Act because, had he not resigned from his employment - given the decision in relation to the care of the child - it would have resulted in Mr and Mrs Withers being forced to place their child in care. Given the foregoing I hereby order, in accordance with the provisions of section 13(3) of the Long Service Leave Act 1976, that Industrial Transmission and Engineering Supplies Pty Ltd pay to former employee, Steven George Withers, of 429 Cambridge Road, Mornington, 7018, the sum of $2,626.74, being for pro rata long service leave entitlements. This amount to be paid to Mr Withers by the close of business on 21 September 1994.
R J Watling Appearances: Date and place of hearing: |