TASMANIAN INDUSTRIAL COMMISSION

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

Mrs Karen Maree Brazendale
(T6215 of 1996)

and

P. & P. Holdings Pty. Ltd.
(trading as Elphin Continental Cakes)

Long service leave dispute - pro rata entitlement - domestic necessity - application granted - payment ordered

REASONS FOR DECISION

This dispute relates to a claim for pro rata long service leave said to be owing to Mrs Karen Maree Brazendale an ex-employee of P. & P. Holdings Pty. Ltd. (trading as Elphin Continental Cakes) (the employer) the directors of which are Mr Peter Gordon William Elliott and Mrs Pirjo Terttu Elliott.

Mrs Brazendale was claiming an entitlement to pro rata long service leave pursuant to s.8(2)(b) for reasons specified in s.8(3)(c); that is -

'(c) 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'

on the grounds that, at the time she ceased work, she was six and one-half months pregnant and was terminating her employment to have and raise her child.

This unresolved dispute, along with a report of his findings, was referred to the President by Mr G Williams, for and on behalf of the Chief Executive, Workplace Standards Authority pursuant to s.13(1) of the Long Service Leave Act 1976, and it was referred to me for hearing and determination.

At the commencement of the hearing there was some debate about the content of the report. Whilst not wishing to prolong the debate any further, nevertheless, I would have to say, that the content of the report forwarded to the President is nothing more than the writer's view and as such carries no more weight than the views expressed by the employer's and Mrs Brazendale's representatives in this matter. But of course a prudent writer of a report, such as the one envisaged in the Act, would take the necessary steps to ensure that it was couched in such a way so as not to give comfort to one side or the other in dispute - whether real or imagined.

Mrs Brazendale was continuously employed by the employer for a period of 9.019 years, commencing on 27 January 1987 and finishing on 2 February 1996.

In July/early August 1995 Mrs Brazendale informed Mrs Pirjo Elliott (for ease, hereafter referred to as 'the employer') that she was pregnant. The employer said to her -

'Well, what do you want to do?' 1

to which Mrs Brazendale responded she did not want to come back to work as she wanted to stay at home and look after the child. During the course of that conversation the employer asked Mrs Brazendale for an estimate of how long she wanted to continue working. Mrs Brazendale indicated that she wanted to work as long as she could because she needed to accumulate enough money to buy things for the baby. The employer responded by saying -

'...whatever you want to do is fine' 2

On or about the same time, Mrs Brazendale told the employer that she intended going back to part-time work eventually, however, it was not going to be immediate. The evidence shows that the employer responded by saying -

'Look, whenever you're ready to go back to work come and see us, I'll give you a part-time job.' 3

In December 1995 a more definite discussion took place about the date Mrs Brazendale would actually be leaving. In her evidence the employer said they discussed -

'... the best time for her to leave before the baby was due, and we had two other female shop assistants and I wanted to get their holidays out of the way before she left because we had a new employee coming in and it would have been more difficult trying to do our normal workload with an inexperienced person. So I asked her would it have been all right with her if she stays until those people had had their leave, and that would mean then that she left at the end of January or at the beginning of February.' 4

She went on to say that it was agreed that Mrs Brazendale finish work on 2 February 1996.

The employer maintained that Mrs Brazendale resigned her full-time employment to have a baby, but her offer of future part-time employment still existed.

At this time Mrs Brazendale was expecting her baby to be born in mid-April 1996 and this was confirmed by a medical officer from the Queen Victoria Hospital in a `Certificate of Pregnancy' No.111.

A couple of weeks before Mrs Brazendale's agreed termination date, she advised the employer that she would not be returning to work as she was going to look after the child herself..

The employer stated that, during the last week of her employment, Mrs Brazendale was feeling tired and an arrangement was entered into whereby Mrs Brazendale would only work 5 hours a day, but still receive her normal pay.

I am satisfied that at no stage did Mrs Brazendale apply for maternity leave in accordance with the provisions contained in the Bakers Award nor did she request any special or general unpaid leave with no limitation on when she would return to work.

The employer, in correspondence dated 9 February 1996 to Mrs Brazendale, initially agreed to pay pro rata long service leave upon -

'... a written formal letter of resignation (not a fax) stating the reason for your resignation and your desire not to return to our employ.'

In return correspondence, dated 13 February 1996, Mrs Brazendale stated in part -

'This is my formal letter of resignation as a sales assistant at Elphin Continental Cakes. The reason I resigned on the 2 February 1996 is, as you well know, that I am expecting a baby in April. I do not wish to return to your employment as I intend to look after our child full time ...'

Mrs Brazendale, having complied with the employer's request, did not receive payment for pro rata long service leave which resulted in the matter being the subject of this dispute.

Submissions were made on behalf of Mrs Brazendale by Mr D Holden and Mr R Warwick. Mr Holden's submissions can be summarised as follows:

• The claim for pro rata long service leave was based on domestic and/or other pressing necessity, but primarily domestic necessity, and fell within the meaning of s.8(3)(c) of the Act.

• Mrs Brazendale genuinely believed that the reason she gave up work was to be available to care for her soon to be born child - a decision made in concert with her husband.

• Mrs Brazendale acted in accordance with what a reasonable and prudent person would regard as domestic or pressing necessity thus justify the termination of employment.

• The Commission should rely on the following extended test:5

'(1) Was the reason claimed for termination one which fell within the section?

(2) Was such reason genuinely held by the worker and not simply colourable or a rationalisation?

(3) Although the reason claimed may not be the sole ground which actuated the worker in his decision to terminate, was it the real or motivating reason?

(4) Was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate his employment?'

On each of the above tests Mr Holden said the answer would be 'Yes'.

• When Mrs Brazendale first discovered she was pregnant she said she gave consideration to working a small number of hours per week on a part-time basis at some time in the future after the birth of the child. However, after consideration, the family decision was taken that it was not practical, nor was it in the best interest of the child for her to continue working.

  This was confirmed in Mrs Brazendale's submission when she stated that at the beginning of her pregnancy she thought she would go back to work and have her parents look after the child. However, the situation changed when her mother started working full time and she could not expect her mother to give up her position to look after their baby. In any case Mrs Brazendale said she wanted to stay home and raise the child herself.

• Mrs Brazendale was only required to show that the main motivation in terminating her employment was because of her pregnancy and to bring up her child.

• When deciding their future and the future of their children, parents have a fundamental right to choose whether or not their children will be cared for by themselves or some other person.6

• Mrs Brazendale was pregnant and she made a decision to terminate her employment to care for the child. At the time she was six and one-half months pregnant and was finding work difficult and decided to terminate her employment. Any suggestion that Mrs Brazendale terminated her employment because of an entitlement to pro rata long service leave was fanciful.

• Termination on the grounds of pregnancy entitled Mrs Brazendale to pro rata long service leave.7

Mr Warwick, on behalf of Mrs Brazendale, presented additional material in support of the claim.

Mr A Cameron, of the Tasmanian Chamber of Commerce and Industry Limited, represented the employer in this matter and his submissions in opposition to the claim are summarised as follows:

• To be pregnant is not an exceptional circumstance that entitles an employee to automatic payment of pro rata long service leave.

• Mrs Brazendale's argument of wishing to stay at home and look after the child was a rationalisation colouring her desire to collect an unjustified windfall.

• There was an onus on the employee to demonstrate -

'(a) why it was necessary to terminate his employment, i.e. that some real and genuine problem existed at the time of resignation and that an undesirable consequence would have occurred had he not resigned; and

(b) that the reason was sufficient to justify his actions and was within the meaning of s.8(3)(c) of the Act.' 8

• Questioned the necessity, in the 1990's, for a parent who has a young child to stay at home to look after that child.

• When maternity leave was introduced into the award in 1980 it was put, that women have a vital and changing role in society and in the paid workforce and that women should not be discriminated against in the workforce because of their unique biological function of child bearing; but now it seemed as though the employer was being asked to pay for this unique biological function, if pro rata long service leave was to be granted, where any employee leaves because she is pregnant.

• Having a child and wishing to stay at home to look after it was a matter of choice, one many women are taking, but evidence suggests there is no necessity to do so.9

• Reference was made to the decision of Koerbin P. where it stated:

'To succeed in a claim of this kind I am of the opinion that the evidence should point overwhelmingly to the fact that the claimant either had, or genuinely believed that he had no option but to terminate his employment due to a domestic situation of such a pressing nature as to justify that course of action. I do not believe (nor do I determine in any absolute sense, however) that an ephemeral or passing problem relating to the raising of young children necessarily constitutes a domestic problem sufficient to cause an employee to abandon his employment.' 10

• 'Pressing necessity' was the existence of a state of affairs such as to compel or necessarily require the employee to terminate her employment.11

• At the time Mrs Brazendale resigned her full-time position she was pregnant, and as there was no child there was nothing requiring immediate attention. Whilst Mrs Brazendale may have thought it was desirable to terminate her employment, nevertheless, it does not necessarily constitute a `pressing necessity'.

• Mrs Brazendale should not have felt compelled to resign because she was free to return to work at any time in the future and there was a growing number of women not resigning their employment and they did not feel compelled to resign in the circumstance of being pregnant.12

• An employee who is pregnant has a number of options;

(a) take maternity leave and come back to work part time using either formal or informal child care;

(b) take maternity leave and decide not to come back to work; or

(c) resign forthwith.

The choice should not be exercised for monetary gain at the expense of the employer.

• Mrs Brazendale was pregnant and healthy and there were no medical grounds on which resignation was based and she did not have any unusual problems associated with her pregnancy. There was no child requiring her urgent attention or compelling her to terminate her employment.

• If Mrs Brazendale had taken maternity leave and terminated her employment when the baby was born, then she may have come before the Commission in a stronger position as the real and actual needs of the child could be shown. But at the date of resignation she had no idea what was in store and only thought that it might be a good move to leave.

Conclusion

As can be seen from the transcript, a number of issues were canvassed during the course of this hearing. When arriving at my decision I have considered the merits of each.

The employer had known, as far back as July/August 1995, that Mrs Brazendale was pregnant and that at some stage she would be leaving her employment to have the baby. Indeed, the actual cessation of employment date, i.e. 2 February 1996, was arrived at after consultation and agreement between the employer and Mrs Brazendale.

Even though Mrs Brazendale had not applied for maternity leave, or for that matter, any other form of leave, the employer had formed a view that she (Mrs Brazendale) was just resigning her full-time employment to have the baby and, at some unspecified date, she would be returning to work to take up the part-time position offered to her by the employer.

From the time she notified the employer she was pregnant, I believe Mrs Brazendale always intended terminating her employment, at some stage, to have the child. The only uncertainty (if any) was whether she would take up the employers offer of future part-time employment.

Up until two weeks before she finished work, there was always a possibility that Mrs Brazendale would be returning to work as a part-time employee, but that changed when she decided, after consultation with her husband, that she wanted to stay at home and raise the child, thus eliminating the need to place the child in care.

I have not been satisfied that Mrs Brazendale's desire to stay at home and look after the child was a rationalisation to collect what Mr Cameron described as an 'unjustified windfall'.

Mrs Brazendale was entitled to accept or reject the employer's offer to take up, what I believe to be, a new contract of employment at some future undetermined date. Her eligibility for pro rata long service leave was not contingent on a return to work in a part-time capacity.

The real questions to be answered in this matter are: Why did Mrs Brazendale terminate her employment on 2 February 1996?; and, whether the reason(s) claimed for doing so fell within the meaning of s.8(3)(c) of the Act?

I do not intend reiterating the submissions of the parties in respect to the reason they believe Mrs. Brazendale terminated her employment, except to say, those submissions, along with the evidence adduced under oath from Mrs Brazendale and the employer, have on balance, led me to conclude that Mrs. Brazendale's real and motivating reasons for terminating her employment were:

(a) because of her pregnancy and the impending birth of the baby in April 1996; and

(b) her real desire to care for the child herself without resorting to placing the child under the care of others.

Whilst it seems that Mrs. Brazendale did not experience any unusual problems associated with her pregnancy, nevertheless, there must come a time where a woman, for reason of her pregnancy, is required to make a decision when to cease work. I am of the view that the pregnant woman is best placed to make that decision and in doing so she will take into consideration a number of things including her ability to continue working and the well-being of the unborn child.

When such a decision is made, as it was in this case, I am of the view that it constitutes a domestic necessity within the meaning of s.8(3)(c) of the Act, and I decide accordingly.

Given the foregoing, I hereby Order in accordance with the provisions of s.13(3) of the Long Service Act 1976 that P. & P. Holdings Pty. Ltd. (trading as Elphin Continental Cakes) pay to former employee Mrs Karen Maree Brazendale of 10 Callistemon Court, Perth, Tasmania 7300 the sum of $2,923.37, being for pro rata long service leave entitlements. This amount must be paid to Mrs Brazendale by the close of business on 28 August 1996.

R J Watling
COMMISSIONER

Appearances:
Mr C Willingham with Mr G Thomas for the Chief Executive, Workplace Standards Authority
Mr D Holden with Mr R Warwick for Mrs Karen Maree Brazendale
Mr A Cameron with Mr P Elliott and Mrs P Elliott for P. & P. Holdings Pty. Ltd. (trading as Elphin Continental Cakes)

Date and place of hearing:
1996
June 7
Launceston

_{1 Transcript pg.46}
2 Transcript pg.46
^{3 Transcript pg.46}
4 Transcript pg.49
5 Computer Sciences of Aust. Pty Ltd v. Leslie, Watson, Bauer & Glynn JJ. Industrial Commission NSW in court session - 6 IR (1983) at 191;
6 T5156 of 1994, Steven George Withers v. Industrial Transmission and Engineering Supplies Pty Ltd, TIC at pg 2
^{7 Exhibit A.1}
8 T6181 of 1996 - Hazell Pty Ltd (now Trident Consolidated Industries) - Appeal TIC
^{9 Exhibits C.3 and C.4}
10 T1651 of 1988, G C Pinner v. James Hardie Building Products Pty Ltd - TIC - 22/12/1988 at pg. 3
11 Hager v. Brodbeck, NSW Industrial Commission (Cahill J) No.731 of 1983, AILR Vol.26 No.7 1994 at par.126.
12 C.9 - Maternity Leave in Australia - Employee and Employer Experiences - Report of a Survey, Helen Glezer, Research Fellow, Australian Institute of Family Studies