IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T758

Industrial Relations Act 1984

This matter involves a claim by a Mr. R. H. Gorman (the Employee) an employee of the Supply and Tender Department for almost ten (10) years, for pro rata long service leave. The claim is based on Section 7(1)(ba) of the State Employees (Long Service Leave) Act 1970 (the Act). The section reads:

(ba) resigns from his employment on account of domestic or other pressing necessity, that the prescribed authority certifies, in writing, is, in his opinion, of such a nature as to justify the employee's resignation;"

The requisite period referred to above is seven (7) years continuous service.

The prescribed authority, in this case the Manager, Supply and Tender Department, has refused the Employee's claim. Following investigation by the Department of Labour and Industry (DLI) the dispute was not resolved and therefore comes to the Commission for determination.

A summary of the Employee's evidence in this matter is as follows:

• he was employed by the Supply and Tender Department from 12 February 1976 until 27 November 1985;

• the low salary attracted by the Employee's classification of General Officer, Class V-I/V-2 (actual salary at time of resignation $15,738 p.a.) had resulted in financial difficulties for he and his wife;

• for some time the employee had been looking for alternative, better paid employment to relieve the problem;

• the low income level of the Employee was the deciding factor in his wife having to go to work;

• it was also the reason why he and his wife had delayed having a second child;

• the joint income level (approximately $26,000 p.a.*) was barely sufficient to sustain the family and caused continual marital problems;

  *I have accepted the figure of $10,000 p.a. as the amount earned by the Employee's wife at the time of his resignation. However, some doubt exists in my mind as to its accuracy as other figures of $12,000 and $16,000 p.a. were referred to during the Employee's evidence, or the submissions of the TPSA.

• the marital situation created by the financial problems had resulted in a temporary split up of the marriage early in 1985;

• when the offer of a significantly better paid position was made, it was seen as the answer to the financial difficulties and therefore the marital problems;

• the new position would not have been available in three (3) months time (when 10 years service was completed and an automatic entitlement to long service leave occurred);

• the Employee effectively had no choice but to resign and in the process resolve his problems.

A number of decisions were referred to and relied on as appropriate by the Tasmanian Public Service Association (TPSA) as establishing precedent for the granting of the Employee's claim.

The TPSA also relied on the fact that the DLI investigating officer in this case had recommended, that the Supply and Tender Department accept the claim and pay the pro rata long service leave to the Employee.

At the time of the Employee's resignation he was receiving a gross salary of $302.65 per week. The new position offered an after tax weekly rate of $450.00 per week, in gross figures, representing approximately twice the old salary.

Mr. Willingham appearing for the Minister for Public Administration, representing the Supply and Tender Department summarised his position as follows:

"Mr. Willingham:

... it will be our contention that in fact the question of domestic or other pressing necessity in the case of Mr. Gorman only became an issue ex post facto his decision to terminate his employment by resignation.

We will contend, and we will attempt to support our contention, that Mr. Gorman believed he had an unequivocal right to pro rata long service leave and that the issue of pressing necessity only became an issue when he was subsequently disabused of the fact that he didn't have an unequivocal right to pro rata long service leave."

(transcript page 14)

Mr. Willingham dealt in some detail with the decisions relied on by the TPSA and some others of his own establishing precedent in such claims. In drawing conclusions from those decisions he submitted:

"Mr. Willingham:

The purpose of quoting at some length from those precedents, was firstly to establish that in our contention and in our submission the test of what is a "pressing necessity" most clearly does not dwell upon the subjective view of the employee concerned. That's clearly shown not only by Eyles and Cook itself, but by a number of other subsequent decisions.

The employee concerned, if the need arises and it has in this matter, is required to discharge the onus of satisfying a tribunal that in all of the circumstances, not only his action was genuinely held and genuinely taken, but that it was an action that in an objective sense would be thought reasonable by a reasonable person."

(transcript page 31).

He submitted that it was clear from Mr. Gorman's letter of resignation and from the DLI investigating officer's evidence, that the Employee believed he had an automatic entitlement after seven years service. He further submitted that the termination of one job to commence a better paid one is not sufficient grounds, for establishing a successful claim for pro rata long service leave.

This claim is based on the Employee's evidence that his low wage and consequent inability to properly provide for his wife and young child created a domestic situation, such as to satisfy the requirements of Section 7 (1) (ba) of the Act.

There are a number of factors and inconsistencies in the Employee's evidence which make it difficult to accept that position. For example:

• his wife was also employed and earning at least $10,000 p.a. (this was the last figure quoted, it was said initially she was earning $16,000 p.a.);

• the statement, "We couldn't afford for my wife to give up work to have another child at the time"1 (transcript page 50) is not consistent with later statements that confirmed his wife had now given birth to a second child and in fact as returning to work;

• the Employee's answer to the following question:

  "Mr. Vines:

  Right. So in your opinion you were in a severe critical financial situation?

  Mr. Gorman:

  At that period of time, yes."

  (transcript page 52).

conveys to me at least, the message that things have now improved, yet the evidence shows that the family income is substantially unchanged;

• the new position required the Employee's time for eighty (80) hours per week; although financial difficulties were alleged to be the basis of domestic problems one wonders what effect those long hours would have had on the family.

It seems to me that for this claim to succeed, I would need to be convinced that the Employee's financial problems are such that they have created a domestic circumstance which satisfies the requirements of the Act. A resignation from one job to take a better paid one (albeit substantially better paid in this case) does not satisfy Section 7(1)(ba) of the Act.

I believe to make such a finding I would have to ignore the fact that the Employee's wife has an income, or alternatively accept that none of it goes towards the running of the home.

In all of the circumstances I do not believe the Employee has satisfied the onus that rests with him, to convince me that his resignation was "on account of a domestic or other pressing necessity".

The claim is therefore refused.

J. G. King
COMMISSIONER

1 underlining mine