TASMANIAN INDUSTRIAL COMMISSION

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

Tyson John Radford
(T.5280 of 1994)

and

Nothrop Logging Pty Ltd

Long service leave dispute - pro rata entitlement - pressing necessity - onus on applicant - application denied

REASONS FOR DECISION

This application was made pursuant to section 13 of the Long Service Leave Act 1976 for a hearing to settle a dispute concerning the non payment of pro rata long service leave.

Mr Tyson John Radford (the applicant) terminated his employment with Nothrop Logging Pty Ltd (the respondent) on 1 June 1994 and although his employment was not terminated by the respondent, nevertheless, the applicant was of the view that he qualified for an entitlement to the pro rata provision of section 8(2)(b) of the Act for reasons covered by section 8(3)(d) which states:

"(d)  an employee whose employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee."

During the course of the hearing, the applicant, who was represented by Mr B Best, an organiser for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch, sought to amend the application, stating that the applicant terminated his employment for reasons covered by section 8(3)(c) of the Act which applies to:

"(c)  an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment: and"

This amendment was not opposed by any party to the hearing.

Being more specific, Mr Best submitted that the applicant resigned his employment on account of a pressing necessity.

The facts associated with this case suggest that although the applicant worked for the respondent for 8.6954 years, he has for the past 4 years, worked on the respondent's cable logging operation.

At the beginning of 1994, the applicant, along with other employees of the respondent, was informed that the cable logging operation of the respondent was likely to close due to a political campaign being waged in opposition to the process.

In February/March 1994 Mr Best, on behalf of the organisation he represents, contacted the respondent to have discussions about voluntary redundancies if the cable logging operation was to close. Further discussions took place in May 1994.

Before negotiations had concluded on any formal redundancy package and some 3 months before the respondent's cable logging operation discontinued, the applicant was approached by another employer who offered him a position within his business.

In the record of complaint the applicant stated -

"I considered my situation, knowing that I would not have a job in a couple of months, and I knew that I would be a fool not to take the job..."

There was no written resignation given to the respondent, however, the applicant, when giving evidence and in answer to the Commissions question -

"What did you say to the employer when you resigned?"

stated -

"I rang Glen up and said to him that I had some news for him, that I was handing in a weeks notice and that there was no job security there for me..."

The main reasons for the applicant resigning from his employment can be summarised as follows:

• It was apparent that the cable logging operation was coming to an end.

• The uncertainty surrounding his employment and perceived lack of job security.

• The respondent had not given any indication of ongoing employment after the cable logging operation had concluded.

• Consideration for his family and financial commitments.

The respondent's position can be summarised as follows:

• The applicant resigned his employment to take on another job and at no time did he indicate to the applicant that he would be made redundant.

• The applicant had been informed on a number of occasions that his particular job was assured and that it would not be made redundant. (this fact was disputed by the applicant)

• The applicant resigned his employment against the expressed wishes of the respondent.

• When the cable logging operation was eventually shut down, there was still ongoing work for the applicant on the flat country. This contention was supported by the fact that the respondent still employed 15 persons, 4 less that when the cable logging operation was in progress.

• The applicant was a competent and experienced operator and the respondent was not keen to see him terminate his employment.

The determination of this matter was made a little harder due to the conflicting evidence, nevertheless, for a successful application to be bought under section 8(3)(c) of the Act, the onus is on the applicant to demonstrate to the satisfaction of the Commission that -

• he terminated his employment because of, not only some pressing necessity, but also that it was of such a nature as to justify his actions, and

• a real and genuine problem existed and that had he not resigned, there would have followed some particular undesirable consequence.

From the evidence presented during the course of the hearing and from the report presented by Mr Armsby of the Department of Industrial Relations, Vocational Education and Training, I find that the onus has not been discharged therefore, it is not possible for me to conclude that the applicant resigned because of some pressing necessity within the meaning of the Act.

Clearly the applicant's desire to obtain better job security offered by his new employment was an overriding and significant factor in his decision to resign his employment with the respondent.

I can understand that there may have been some uncertainty surrounding the continuation of the cable logging operation, however, that did not necessarily mean that the employer's entire business was to cease.

The applicant seemed to have arrived at the erroneous conclusion that once the respondent's cable logging operating concluded, it automatically made his position within the company, as an excavator driver, redundant. At no time did the respondent inform the applicant that his position within the Company would become redundant.

For the above reasons the claim is dismissed.

R J Watling
COMMISSIONER

Appearances:
Mr B Best of the Construction, Forestry, Mining and Energy Union, Tasmanian Branch for Mr T J Radford.
Mr G Nothrop for Nothrop Logging Pty Ltd.
Mr M Armsby of the Department of Industrial Relations, Vocational Education and Training, Industrial Relations Division.

Date and place of hearing:
1994
Dec 6
Launceston