Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T6029

 

TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T6181

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

Department of Industrial Relations,
Vocational Education and Training

(T6029 of 1996)

and

Hazell Pty Ltd
(now Trident Consolidated Industries)

 

COMMISSIONER P A IMLACH

1 April 1996

Long Service Leave - pro rata entitlement - arbitrated - payment ordered

REASONS FOR DECISION

This application concerned a Long Service Leave Act 1976 (the LSL Act) dispute and it was referred to the President of the Commission pursuant to Section 13(2) of the LSL Act. The President referred the matter to me for hearing.

The dispute was between Robert James Goodman of Rokeby (the Employee) and Hazell Pty Ltd, a transport company of Moonah (the Company).

Sometime during the course of events in this matter the Company was made subject to a deed of company arrangement and it also changed its name (to Trident Consolidated Industries Pty Ltd) but, those developments were peripheral to the main elements of the dispute.

At the commencement of the hearing an investigating officer of the Department of Industrial Relations, Vocational Education and Training, Mrs Therese Butler, reported on the circumstances surrounding this case.

The Employee commenced work with the Company on 14 January 1985 and ceased work there on 12 May 1995. At the time he ceased working with the Company, the employee was classified as a Grade 3 forklift operator/yardman.

The Transport Workers' Union of Australia, Tasmanian Branch (the Union) brought the Employee forward as a witness and the following points were made (either by way of examination or cross-examination):-

  • Around May 1995, the Company's employees at the Sunderland Street depot, where the Employee worked, were in some confusion in their minds as to the status of their employment. Another transport company at that time, TNT, having previously quit its operations in Tasmania, turned around and announced that it was resuming operations and it was offering employment.

  • The Company, around the same time, announced through the Union's representatives, that, because of financial problems, nine of its employees in the southern area were to be retrenched. There had been talks between the Company and TNT aimed at employees from the Company moving over to be employed by TNT.

  • The TNT applications closed on 6 May 1995 and the Union's redundancy declaration meeting took place on 2 May 1995. The Employee resigned from his employment with the Company on 12 May 1995.

The Employee said that he would have preferred to have stayed with the Company, but, his position there had been precarious. He felt he had to apply for a TNT job because he thought he might be put off by the Company. The Employee also said he had been forced to leave his employment with the Company because he did not think he had a job there. There was no mention of any voluntary redundancy payment to the Employee at the time of his departure.

When it was pointed out to the Employee at the hearing that because of his long service (over ten years) and his experience, he was one of the least likely to be made redundant, he replied that he was worried about the age factor (he was 44 years of age) he was concerned too about the continuing problem of the Company's financial survival. The Employee also said those going over to TNT were told they would receive all their entitlements from the Company. It was not known which of the Company's employees were to be retrenched so the Employee sought the new position because his priority was to maintain employment.

The Tasmanian Chamber of Commerce and Industry Limited (the Chamber) representing the Company brought forward Mr T J O'Connor as a witness: Mr O'Connor was the Group General Manager for Trident Consolidated Industries and as such represented the Chief Executive of the Company in retrospect as he took over responsibility for the Company's affairs in about October 1995, whereas the Employee left the Company's employment on 12 May 1995.

Mr O'Connor advised that the Company went into the administration arrangement on 7 November 1995. He said that, at the time the redundancies were announced (ie May 1995) he understood approaches had been made to valued workers including the Employee, confirming their continued employment. Mr O'Connor also said that the actual number of redundancies had not been stated by the Company to the employees at any time. He did not consider that the Employee would have been made redundant. Mr O'Connor did acknowledge that it was understandable that the Employee felt insecure as to his future employment.

The Chamber, relied on the case Computer Services v Leslie and submitted that the Commission was bound to reject any subjective test and apply the answers to the following questions:-

  1. Was the reason quoted by the Employee within the meaning of Section 8(3) of the LSL Act?

  2. Was that reason genuinely held by the Employee?

  3. Was the reason the real and motivating reason? and

  4. Would a reasonable person have so decided?

The Chamber advised the Commission that about 15 workers statewide had been notified of their possible redundancy and that number was significantly reduced when TNT took up more workers than expected. The matter of redundancy payments only arose after Mr Goodman had left and ultimately there had been no forced redundancies. The Employee had advised the Company of his alleged reason for leaving and his pro-rata claim under the LSL Act, by letter, only after he had left the Company's employment.

The Chamber submitted that the reasons for resignation put forward by the Employee were not the real reasons he left the Company. It was just that he preferred to work elsewhere and any concerns he may have had were not based on facts. The Chamber said that ultimately there were no retrenchments by the Company because enough employees left of their own accord. It was also pointed out that the Employee did not approach the Company about his concerns and intentions and did not formally apply to the Company for pro rate long service leave until early July 1995.

The Chamber canvassed the tests set out in the Computer Services case and also relied on a number of precedent cases and submitted that they gave support to its contentions.

Decision

There were two key facts in this case which were closely related. One was that at the time in question the Company was having financial difficulties and this was well known to everyone, the employees in particular. No doubt the situation was aggravated and accentuated by the rumour mill, but, that did not lessen its veracity. The other fact was that the Company told its employees it intended to make retrenchments, but, it did not nominate which employees were to be laid off.

In the context of these two key factors I consider the tests set out in the Computer Science case uphold the Employee's claim.

I am satisfied that the Employee was genuinely convinced his continued employment was under threat and this was the real reason for his decision to leave the Company and take up the other like employment, which was available to him at the time.

In the light of the two key factors I have mentioned, the fact that the Employee was a good, conscientious, long-term worker with the Company and that he moved from one job to another without any significant financial gain, I am also satisfied that a reasonable person would have followed the same course as the Employee. I also accept the submission of the Union that, in today's climate, an unqualified man of 44 years of age would have reason to be concerned as to his future employment.

All the other facts and contrary submissions put to me, outside the points I have mentioned, and I have considered them all, were inconsequential or irrelevant in the context of those upon which I have based my decision.

The relevant words of the LSL Act (para-phrased from Section 8a subsections (2)(b) and (3)(c) are:-

"... the period of long service leave to which an employee is entitled under this Act is ... (pro rata) in the case of an employee to whom this paragraph applies ... (and it) applies to -

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."

I accept that the Employee terminated his employment because he reasonably believed that his continued employment was in jeopardy and he needed to take steps to ensure his continued employment.

Order

Based upon the conclusions I have reached and the specific provisions of the Long Service Leave Act 1976 quoted I am satisfied that Mr Goodman is entitled to a pro rata long service leave payment.

Accordingly, I order that Hazell Pty Ltd of 92 Sunderland Street, Derwent Park, pay the amount of $3764.91 to Mr Robert James Goodman of 14 Fontain Circle, Rokeby within 21 days from the date of this decision.

 

P A Imlach
COMMISSIONER

Appearances:
Mr R Smith with Mrs T Butler for the Secretary, Department of Industrial Relations, Vocational Education and Training
Mr K J Bacon for the Transport Workers' Union of Australia, Tasmanian Branch and Mr R Goodman
Mr S J Gates from the Tasmanian Chamber of Commerce and Industry Limited for Hazell Pty Ltd (now Trident Consolidated Industries)

Date and place of hearing:
1996
January 30
Hobart