The basis of this claim is contained in a DLI Record of Interview where the Employee details the following:

"Approximately late July 1986, following medical advice from Dr. Simpson of Somerset that it was in the best health interest of my wife and children to have them reside in another area other than Savage River, I applied for annual leave to shift my family to East Devonport. This was rejected because two other Foremen were also on annual leave and it created inconvenience to the company. I then spoke to Dr. Simpson and explained to him the situation and he supplied me with a medical certificate stating that I should be allowed to shift my family to the north west coast.

I presented this certificate to the company and I did not receive a reply. Approximately 11 August 1986 as a result of the company's non-communication to my request, I gave one month's notice. A week later I enquired as to pro rata long service leave payment and this was denied in writing by the company on 1 September 1986.

My annual leave application was for approximately 450 hours and I wished to take it all as I believed it would take that amount of time to find suitable accommodation and settle my family into a new home."

Evidence and submissions were presented going to the question of whether or not the Employer had been reasonable in dealing with the Employee's request for annual leave. While I do not intend to canvass the situation I conclude, on the information before me, that the Employer gave every consideration to the Employee's requests and I can find no justification for his complaints. It naturally follows that if the non-granting of a part of the Employee's annual leave was the sole basis of this claim, it would be dismissed.

This matter involves a disputed claim for pro rata long service leave. An employee (Mr. N. T. Carey) was employed by Savage River Mines (the Employer) from 3 May 1978 until 7 September 1986. The claim for payment of long service leave is made in accordance with Section 8(3)(c) of the Long Service Leave Act 1976 (the Act) and is denied by the Employer.

Section 8(3)(c) of the Act reads:

"(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;"

An employee terminating his employment, after seven (7) years' service, in accordance with the above has an entitlement to pro rata long service leave. The dispute in this case is over whether or not the circumstances of the Employee's termination constitute a "domestic or other pressing necessity of such a nature as to justify the termination of that employment" and therefore payment of the leave.

The Employee's claim has been investigated by an officer from the Department of Labour and Industry (DLI). That investigation did not resolve the dispute and it was therefore referred to this Commission.

During proceedings before the Commission on 20 January 1987 the Employee gave two basic reasons for leaving his employment. They were: his wife's ill health and his claim that his children's education at Savage River was deficient.

On the basis of the limited assertions made by the Employee concerning problems with education provided at Savage River I must dismiss this aspect of the Employee's argument. Therefore, the claim succeeds or fails on the question of whether or not the employee's wife's health was such that it created a domestic situation justifying the Employee's termination.

Apart from statements made by the Employee on 20 January the only evidence to support this aspect of his claim is a letter from a Dr. Simpson of Somerset dated 19 August 1986 which reads:

"Mr. Neville Carey has come to see me today as he has had domestic problems which appear to relate to his wife whose health is not good at Savage River. He feels that a period of leave would be beneficial and I agree - can the Company see its way to giving him leave of absence for a month to give him a chance to improve the situation?"

In respect to further evidence the following exchange is recorded in the transcript at page 24:

"Commissioner:

Well you see this certificate doesn't say that the doctor, for instance, recommends that your wife should not live in Savage River. It really deals with a request on your behalf for annual leave and explains the circumstances for that request.

So perhaps what I am putting to you is that this certificate or statement from the doctor, doesn't go to the crux of the question that this matter is all about.

Would you like the opportunity of getting any medical evidence that you can from the centre at Savage River?

Mr. Carey:

Yes, I would.

I might even be able to get one from Dr. Blake in East Devonport - she was under him as well for the same thing, her nerves.

Commissioner:

Well I would be more interested in getting something, a copy of something that already exists rather than you in fact go to a doctor now and say, "Well I would like something from you relating to this period".

So to that extent if you can get copies of statements or medical history of your wife during the relevant period at Savage River, then that may help you, it may help me."

As there was no objection from Mr. Evetts, appearing for the Employer, proceedings were adjourned to allow the Employee the opportunity to furnish further medical information or records.

On reconvening proceedings on 2 April 1987 a number of medical reports and records were relied on by Mr. Carey. However, only two were of any real assistance to me in coming to a conclusion in this matter. The first is a report by a Dr. A. Blake of East Devonport, dated 12 March 1987 and addressed to The Manager, Savage River Mines. Pertinent excerpts from the report are:

"He (Mr. Carey) was down in Savage River almost nine years with his wife, Deborah, and they had two children while living in Savage River but his wife never ever accommodated to life on the isolated West Coast. She always longed to be back with her family here in Devonport ...

I saw her in 1981 when she had left the West Coast and her husband and she really was a total nervous wreck, she had lost weight and had terrible stomach problems which I am sure was due to her family situation ...

I investigated her very thoroughly and including x-rays etc., and could find no reason for her loss of weight, except for the break up of her marriage.

After a few months, she decided to return to her husband at Savage River and they got together again and decided to have another child to reunite the family and she was born in 1982.

Soon after this, the marriage began to have the stresses and strains that it had had before, due entirely to Deborah's inability to accommodate to life in Savage River ...

His wife freely admits that it was the West Coast which put the strain on the marriage. She finally decided to leave him in September last year and came to live in Devonport and I think that Neville found it impossible to cope in Savage without his wife and family and decided to join them up here. He thought that by coming up here, he would be reunited with his family but unfortunately, this has not occurred and they are living a separate life, ..."

Mr. Evetts submitted that Dr. Blake's report did not satisfactorily cover the period from 1981 to 1986, in terms of clearly stating that there were continued medical problems. Further that from being very specific in his references to problems in 1981 the balance of the report was general and was of no great assistance.

While I appreciate and accept some of the points made by Mr. Evetts, a second document, a letter from a Dr. R. Taylor to a Dr. A. Caseliyr at Savage River is helpful in reaching a conclusion. The letter is dated 11 October 1985 and amongst other things makes two observations as follows:

"... All of this is complicating a fairly rocky marital situation ...

... and I worry a little that she is not going to be able to snap herself out of it while there are other emotional problems surrounding her."

Those statements are sufficient to satisfy me of the accuracy of the evidence of the Employee given on 2 April 1987, that his wife suffered emotional and other problems virtually continuously while at Savage River.

Having carefully considered all of the information and evidence put to me I conclude that the Employee resigned his employment from Savage River Mines on account of a pressing domestic necessity. He therefore qualifies for pro rata payment of long service leave in accordance with Section 8(2)(b) of the Act.

An order reflecting this decision is attached.

J. G. King
COMMISSIONER