TASMANIAN INDUSTRIAL COMMISSION

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

Mrs Cheryl Spencer
(T5468 of 1995)

and

Vivienne Lee Hawkins and Mark Joseph Daly
(trading as Pierre's Coffee House and Restaurant)

Long Service Leave dispute - pro rata entitlement

REASONS FOR DECISION

This was a dispute referred to the Commission for hearing and determination under Section 13 of the Long Service Leave Act 1976 (the LSL Act).

The dispute was over a claim for a proportionate long service leave entitlement under Section 8 (3) (b) of the LSL Act by Mrs Cheryl Spencer of Abbott Street, East Launceston, against her employers Vivienne Lee Hawkins and Mark Joseph Daly (trading as Pierre's Coffee House and Restaurant) of George Street, Launceston (the Employers).

Unfortunately the Employers failed to appear at the hearing and it proceeded ex parte. I am satisfied that the appropriate notice by mail was sent to the Employers. As well, my Associate spoke to one of the Employers about the hearing some days prior to the event. It is unfortunate that the Employers did not attend as it is quite possible that some key issue may have been raised from that quarter, or contribution made, which may have tipped the scales or illustrated a precedent point of assistance forever-after in the settlement of other such disputes.

Be that as it may, a full report on the facts surrounding this case was made to the Commission on behalf of the Secretary of the Department of Industrial Relations, Vocational Education and Training and the facts were as follows:

• Mrs Spencer was employed under the classification of a full-time Food and Beverage Service Grade 2 employee in the Restaurant Keepers Award (the Award) and it was agreed between the parties she had been employed at Pierre's Coffee House and Restaurant since early 1985, although the Employers only took over the business on 8 December 1992.

• Mrs Spencer claimed she had terminated her employment "on account of illness of such a nature as to justify the termination of that employment". She was advised to resign by her Doctor and an appropriate medical certificate was produced.

• The Employers disputed Mrs Spencer's entitlement.

• The relevant Award rate of pay was $350.10 per week and Mrs Spencer's pro rata LSL Act entitlement would have been $2863.68.

• The nature of Mrs Spencer's illness was anxiety and depression said to be brought about by "the combined effects of work and home". Mrs Spencer claimed that in April 1994 her hours were reduced and "messed around", with her hours being swapped and changed and her being allocated lunch times and busy days. There had been some difficulty with the Employers over Mrs Spencer's absence from work which did not help the situation.

The Employers for their part denied that Mrs Spencer's hours of work had been "messed about" and they said roster changes had been mutually agreed at the instigation of Mrs Spencer. They also said that Mrs Spencer herself had originally asked for her hours of work to be reduced.

The Employers did not accept the Doctor's statement/certificate as true, and denied Mrs Spencer's employment had contributed to her illness.

Despite the absence of the Employers at the hearing I believe the fact of the Doctor's evidence (which was not disproved in any way) is sufficient for me to grant Mrs Spencer's claim. This is on the basis that all requirements of the LSL Act as to termination of business, length of service and proportional entitlements have been satisfied as well.

So long as the medical evidence is that Mrs Spencer was ill and the Doctor advised her to quit work on that account, and I am satisfied on both counts, whether or not the work situation contributed is not really a factor to be considered under the LSL Act, the entitlement still lies in any case and I so find.

Accordingly, I hereby order that Vivienne Lee Hawkins and Mark Joseph Daly, trading as Pierre's Coffee House and Restaurant of 88 George Street, Launceston pay the amount of $2863.68 to Mrs Cheryl Spencer of 175 Abbott Street, East Launceston within 21 days from the date of this decision.

P A Imlach
COMMISSIONER

Appearances:
Mr George Goss (Australian Liquor, Hospitality and Miscellaneous Workers' Union) for Mrs Cheryl Spencer
Mr Graeme Williams with Mr Gary Thomas for the Secretary of the Department of Industrial Relations, Vocational Education and Training.

Dates and place of hearing:
1995
May, 24
Launceston