TASMANIAN INDUSTRIAL COMMISSION

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

Ms Fiona Anne Rowe
(T6426 of 1996)

and

TSE Pty Ltd
as Trustees for Gerald T Powell Family Trust
- trading as Hadspen Mini Market

Long service leave dispute - pro rata entitlement - illness and pressing necessity - application rejected - file closed

REASONS FOR DECISION

This dispute relates to a claim for pro rata long service leave said to be owing to Ms Fiona Anne Rowe an ex-employee of TSE Pty Ltd as Trustees for Gerald T Powell Family Trust - trading as Hadspen Mini Market (the employer) the directors of which are Mr Gerald Tasman Powell and Mrs Linda Kathryn Mihaich-Powell.

It was agreed that Ms Rowe commenced her employment on 10 November 1987 with G and M Sutton (trading as Hadspen Mini market), and on 10 October 1994 her employment was transmitted to TSE Pty Ltd as Trustees for Gerald T Powell Family Trust - trading as Hadspen Mini Market and she continued working with that employer until she terminated her employment, without notice, on 23 November 1995.

It was also accepted that the employer was liable to pay any pro rates long service leave if, indeed, an entitlement existed.

Ms Rowe was claiming an entitlement to pro rata long service leave pursuant to s.8(2)(b) of the Long Service Leave Act 1976 for the reasons specified in:

Section 8 (3) (b):-

"An Employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment," and

Section 8 (3) (c):-

"an employee who terminated his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment,"

The circumstances leading up to Ms Rowe's termination can be summarised as follows:

· In October 1995, Ms Rowe experienced a breathing problem which she believed was caused by stress.

· On 17 November 1995 she consulted Dr Trezise, who sent her to an ENT specialist; that specialist found no organic cause which led Dr Trezise to conclude that stress, leading to laryngeal spasm, was in effect the cause of the choking bouts.

· The evidence suggests that there was no previous employment history indicating that Ms Rowe had been absent from work due to any stress-related illness.

· On 23 November 1995, on or about 5.15 pm, when Mr Gerald Powell returned to the business, it was Ms Rowe's belief that she was spoken to, by him, in a rude and aggressive manner and he ridiculed her in front of customers. However, there was some conflict over what was said.

She finished work at 6.00 pm and on her own admission she was upset.

At approximately 6.30 pm that day Ms Rowe telephoned Mrs Mihaich-Powell and told her that "she could not take any more" and that she "was not returning to work". Mrs Mihaich-Powell tried to convince her to reconsider what she was doing, but this was to no avail.

· On 1 December 1995 the employer forwarded to Ms Rowe a letter which stated in part:

"It is with regret that we accept your resignation after your phone call on Thursday evening November 23rd - effective immediately from Friday 24th November as you requested".

Enclosed with the correspondence was a cheque, being payment for accrued annual leave due to Ms Rowe.

· On 4 December 1995 Ms Rowe wrote to the employer in the following terms:

"Dear Gerald

As you would be aware on 23rd November last at approximately 6.30- pm I rang your home and spoke to your wife in relation to my continual employment with your firm.

At the time I indicated to her that I would have to terminate my employment.

Your wife accepted my resignation. It is therefore my understanding that my employment termination was mutually acceptable.

During the past 13 months I have been under constant pressure at the workplace.

This has been brought about by requirements to work long hours and this was to be a short term situation but lasted for 13 months. This has resulted in numerous domestic pressures as well as creating personal health problems.

I would therefore respectfully request that you forward to me at the earliest my due entitlement being my holiday pay and my pro rata long service leave pay."

· In return correspondence, dated 12 December 1995, the employer stated:

"In reply to your letter dated December 4th 1995 requesting pro rata long service pay - please note that as you have provided no evidence of compliance with the provisions of the Act to actually demonstrate entitlement - no payment can be made".

· On 13 December 1995 Ms Rowe responded to the employer's letter of 12 December 1995, which in part stated:

"You would have noted in my letter of the 4th December that I did point out to you that I had been under constant pressure in the workplace for the last 12 months. This had been brought about by requirements to work long hours which was to have been a short term situation but lasted for 13 months.

This resulted in a deterioration of my personal health which as you well know I had to seek specialist medical attention. Also it put an enormous strain on my personal relationship with my partner as well as other members of my family. This brought about a drastic deterioration to perform my home duties as well as the preparation of meals.

I therefore respectfully request that you reconsider your decision not to pay what I believe I am entitled to."

· On 13 May 1996 Ms Rowe obtained a medical report from Dr G F Trezise, which stated in part:

"Fiona Rowe consulted me on 17/11/95 with the story of recent episodes of choking in her breathing. These episodes sounded to be related to stress causing spasm of the vocal cords."

· On 14 May 1996 Ms Rowe lodged her complaint relating to the non payment of long service leave with the Workplace Standards Authority.

· On 8 July 1996 Ms Rowe obtained a further medical report from Dr G F Trezise, which said in part:

"Fiona's only source of stress was her employment where she was required to work unduly long hours without breaks and when she felt insulted by her employer and insulted for her work.

It is notable that since changes in her employment condition she has had no further symptoms of stress."

CONCLUSION

In this matter, to be eligible for pro rata long service leave, the onus was on Ms Rowe to establish that she terminated her employment on account of illness or a pressing necessity. It was also necessary to show that the illness or the pressing necessity were of such a nature as to justify her terminating that employment.

In relation to the pressing necessity, I would have to say, there was little or no evidence before me that would have me arrive at the conclusion that some real and genuine problem existed, at the time of resignation, that would constitute a "pressing necessity" within the meaning of the Act.

Therefore that part of the claim is dismissed.

I now turn to the to the second part of the claim, that is the question of illness.

I have noted the content of the doctor's reports, however, I am not satisfied that those reports establish that Ms Rowe's illness was of such a nature that it became necessary for her to terminate her employment on 23 November 1996. Certainly the doctor did not make any recommendations to that effect.

Having said that, I would have to also say that, the absence of any recommendation from the doctor does not, of itself, disentitle Ms Rowe to pro rata long service leave on account of illness. But without such medical evidence the onus is on the applicant to establish that the alleged illness required her to terminate her employment.

Having considered all the evidence before me relating to this matter, I have, on balance, arrived at the conclusion that the real and motivating reason for Ms Rowe terminating her employment was because she felt insulted by the comments made by Mr Gerald Powell on the evening of 23 November 1995 and that she could no longer work for him.

Given that finding, I would have to conclude that Ms Rowe's application does not satisfy s.8(3)(b) of the Act, and therefore this part of the application is also rejected.

R J Watling
COMMISSIONER

Appearances:
Mr G Williams with Mr G Thomas for the Chief Executive, Workplace Standards Authority
Miss Fiona Anne Rowe representing herself
Mr Gerald Tasman Powell and Mrs Linda Kathryn Mihaich-Powell for TSE Pty Ltd as Trustees for Gerald T Powell Family Trust - trading as Hadspen Mini Market

Date and place of hearing:
1996
September 20
Launceston