TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.15 dispute with respect of Long Service Leave

Department of Industrial Relations, Vocational
Education and Training
(T5984 of 1995)

Mr I C Robins

and

Mr E E Gay and Mrs J C Gay
(trading as J C Transport)

Long Service Leave dispute - pro rata payment - termination on account of illness - arbitrated - application dismissed

REASONS FOR DECISION

This was a dispute under the Long Service Leave Act 1976 (LSL Act) which was referred to the President in accordance with Section 13 of the LSL Act by the Secretary of the Department of Industrial Relations, Vocational Education and Training (the Secretary). The President referred the matter to me for hearing.

The dispute was between Ian Charles Robins of Mole Creek, a truck driver (the employee) and Eugene Ernest Gay and Julie Christine Gay of Deloraine, trading as J C Transport (the employer).

The Transport Workers' Union of Australia, Tasmanian Branch (the Union) on behalf of the employee claimed an entitlement to a proportionate payment for Long Service Leave pursuant to Section 8(3)(b) of the LSL Act on the basis that he was:

"an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment".

At the hearing, in the first instance, an Industrial Officer of the Department of Industrial Relations, Vocational Education and Training (the Department), Mr Gary Thomas, reported in detail on his investigations into the history of this matter.

The employee came forward as a witness and the following points were made amongst others:

· The employee commenced employment with J C Transport on 21 May 1984 and he resigned on 12 August 1994.

· The employee claimed that it was his medical condition (nerves and stress) which caused him to resign from his employment.

· It was claimed that a number of factors or events caused or contributed to the employee's stress condition, they were:

1. Questioning by the employer about the cost of repairs to the truck he drove.

2. Lack of attention by the employer to a leaking steering box in the truck after requests for such by the employee.

3. An argument with another driver over work allocation.

4. Instructions from the employer not to deliver wood-waste to Gunns Kilndried early in the morning.

5. The employer's requirement for the employee to carry out maintenance work and clean the truck at weekends without pay at some distance from his home.

6. The stress was caused by the people the employee had to deal with, not the job itself. The employee did not like dealing with other people.

7. The employer's requirements for the employee to fill-out and sign weighbridge tickets by guess-work when the weighbridge was not working nor were the scales on the truck.

The employee did not resign until he had secured a job driving a log truck for one Dennis Claridge, a logging contractor. The new job entailed less contact with people and the employee said he was under less stress.

There was written evidence from two doctors who had treated the employee. The original medical certificate or report which the employee handed to the employer on giving a week's notice was not made available to the Commission, but, was reported to have been dated 1 August 1994 and to have said:

"This patient is suffering from stress and depression which appears to be due to the strains to which he is subjected during the course of his present employment."

In response to the employee's statement Mr Eugene Gay, representing himself as one of the employers, made the following points:

· Many attempts had been made to fix the leaking steering box to no avail because there was a design fault in it: in any case, the truck was not unsafe because of the problem.

· In ten years the employee had not complained to the employer at any time about all the problems now alleged.

· The employer could not be held responsible for difficulties the employee had dealing with people generally.

· The matter of the weighbridge tickets was not a difficultly as Mr Gay had an agreement with the relevant sawmill company for estimates only of weights to be provided. The weights were irrelevant to any payment made.

· Dr Rawson had also stated that he could not verify the employee was under stress only that the employee said he was.

· The employer was not given any opportunity to change the situation causing the stress because it was first notified at the same time as the employee resigned from his employment.

· The employee had agreed to the truck maintenance and cleaning arrangements when he commenced employment.

Finally, in its right of reply, the Union relied very much on the case quoted by the Industrial Officer of the Department in his report, British Motor Corporation (Aust) Pty Ltd v Chance1 and submitted that it supported the employee's position.

DECISION

I am not satisfied that the employee was ill enough, if at all, to rely on the provisions of the LSL Act.

The medical evidence produced did not clearly say that the employee was ill. I do not accept the certificate from Dr Bill Campbell-Smith2, dated 14 December 1995, as conclusive. In the first instance it was a very late certificate and secondly it merely stated:

"... I treated this man (Ian Robins) for work related stress and depression in 1993 ...."

The doctor would need to specify the factors which satisfied him that the stress was an illness.

Dr Rawson's certificate, dated 1 August 1994, was said to have stated:

"This patient is suffering from stress and depression which appears to be due to the strains to which he is subjected during the course of his employment."

Again, the words, "appears to be due" hardly provide clear evidence. Dr Rawson went further in a letter to the Regional Manager of the Department of Industrial Relations, dated 1 November 1995, in which he said, amongst other things:

"There was no absolute illness which required him to terminate his employment - but it did seem to be upsetting his well-being."

and

"No - I recommended nothing - except to reiterate what he had told me about himself - in accordance with the certificate."

In the context of my foregoing comments, I am not prepared to confirm that the employee's illness was of "such a nature as to justify the termination of that employment."

This also means that the other reasons and precedents relied on by the Union fall down.

I reject the employee's claim for a payment under the LSL Act and for the above reasons the application is dismissed.

P A Imlach
COMMISSIONER

Appearances:
Mr C Wilkes from Transport Workers' Union of Australia, Tasmanian Branch on behalf of Mr I Robins
Mr E Gay with Mrs J Gay for J C Transport
Mr G Thomas for Department of Industrial Relations, Vocational Education and Training

Date and place of hearing:
1995
December 19
Launceston

1 1965 AILR 388
2 Exhibit TWU1