Department of Justice

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

Andrew Mark Thomas
(T.5390 of 1995)


The Examiner Newspaper Pty Ltd



HOBART, 10 March 1995


Long service leave dispute - pro rata entitlement - domestic or other pressing necessity - application granted


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 Andrew Mark Thomas (the applicant) terminated his employment with The Examiner Newspaper Pty Ltd (the employer) on 11 February 1994 and the applicant was of the view that he qualified for an entitlement to the pro rata provisions of section 8(2)(b) of the Act for reasons covered by section 8(3)(c) which states -

    "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;..."

The undisputed facts surrounding this case are as follows:

  1. the applicant commenced his employment at the employer's Launceston premises on 8 January 1984;

  2. he lived with his wife in Launceston and she was employed in a senior position in a retail establishment in Launceston;

  3. in early 1993 the applicant's wife obtained a position in Hobart with G P Fitzgerald & Co Ltd in their Human Resources Section as State Manager;

  4. after obtaining that position the applicant (who was the Sports Editor and chief sports writer) approached his employer to ascertain whether there would be a position available for him in the employer's Hobart office, so he could follow his wife. When this was met with a negative response, the applicant requested to work from Hobart and frequently travel to the Launceston office. This was rejected also;

  5. the applicant approached the employer again in March 1993, when his wife actually moved to Hobart and again he was told there was no position in Hobart. It was at that time the applicant told the employer of his intention to seek other employment in Hobart so as he could be with his wife;

  6. in January 1994 the applicant obtained a position in Hobart which he commenced on 21 February 1994.

Mr C Buza of the Media, Entertainment and Arts Alliance, Tasmania Branch, for the applicant, stressed during the course of the hearing that it was the desire of the applicant to continue his employment with the employer. He said that even though the applicant's request for a position in Hobart had been rejected, nevertheless, he was hopeful that at some time in the future the position could change.

He said after 11 months of travelling to Hobart each weekend to be with his wife the applicant resigned his employment because:

  1. being apart had generated anguish and stress;

  2. it was not reasonable to expect a married couple to live apart given they had been married for approximately 2 years;

  3. it was not possible to establish a family or reasonable family life;

  4. the costs associated with travelling, dual housing and general living.

Mr R Tremayne, for the employer, submitted that the employer did not believe there was an entitlement to pro rata long service leave based on the conditions provided in the Act. He said that the applicant's wife had resigned from her Launceston position and accepted a position with another company in Hobart. He believed that to be a voluntary decision made within their family structure and that circumstances of forced transfer did not exist. He said that the applicant had freely chosen to remain with the employer until a position became available in Hobart.

In answer to questions from the Bench Mr Tremayne accepted the proposition that a reasonable person, in normal circumstances, would not expect that husband and wife live apart and that he was satisfied that the applicant's reason for terminating his employment was to be with his wife.


Given the facts surrounding this application and the evidence presented during the course of hearing, there is no doubt that the applicant's wife had made a voluntary decision within the family structure to advance her career by accepting a senior position with a company in Hobart, but that does not disentitle the applicant to pro rata long service leave if the reason for terminating his employment -

  1. falls within the meaning of section 8(3)(c) of the Act; and

  2. was genuinely held by him; and

  3. was the real or motivating reason.

There can be no doubt that the only reason the applicant terminated his employment with the employer was to be with his wife and to bring to a conclusion an 11 month separation, along with all the problems and potential problems, highlighted by Mr Buza.

I believe this view to be genuinely held by the applicant and I am satisfied that it was the real and motivating reason for doing what he did. I think any reasonable person finding themselves in the circumstances that the applicant found himself would have felt compelled to terminate his employment especially given the employer could not assist in his transfer to Hobart. I am also satisfied that the application falls within the requirements of section 8(3)(c) of the Act.

For all of the abovementioned reasons I hereby order, in accordance with the provisions of section 13(3) of the Long Service Leave Act 1976, that The Examiner Newspaper Pty Ltd of 71 - 75 Paterson Street, Launceston, pay to former employee, Andrew Mark Thomas, 90 Barrack Street, Hobart, the sum of $6,504.68, being for pro rata long service leave entitlement. This amount to be paid to Mr Thomas by the close of business on 27 March 1995.



R J Watling

Mr D Bingley for the Department of Industrial Relations, Vocational Education and Training.
Mr C Buza of the Media, Entertainment and Arts Alliance, Tasmania Branch with Mr A M Thomas.
Mr R Tremayne for The Examiner Newspaper Pty Ltd.

Date and place of hearing:
Mar 9