IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T754

Industrial Relations Act 1984

This matter, having been referred to me pursuant to Section 13(2) of the Long Service Leave Act 1976, was heard at Ulverstone on 16 March.

The issue to be determined by the Commission is whether or not a Mr. R. G. Lynch, an ex-employee of Bass Bakery, who, at the time of termination had some 13 years' service, has an entitlement to pro rata long service leave.

The agreed facts are that Mr Lynch commenced work with the bakery on or about 2 December 1973. He completed an apprenticeship in baking and remained in the employ of the firm as a tradesman until 4 December 1986 when he terminated his own employment.

What remains in issue is the reason for termination.

Mr. Lynch claims he exited Bass Bakery because of a persistent allergy caused or aggravated by exposure to flour. This condition he submitted, caused him to snore to such a degree as to affect his domestic situation significantly. Specifically he found it necessary to sleep in a separate bed.

The representative of Bass Bakery submitted that Mr. Lynch had not complained of his allergic condition to the bakery. However it was conceded that there was an issue between Mr. Lynch and a senior officer of the bakery about being rostered for work in the Dough Room. Mr. Lynch claimed that this dispute was caused by his exposure to flour.

Mr. Packham, for the company, also argued that Mr. Lynch could have been assigned alternative work had he requested it. However the work that might have been then assigned to him would neither be that of a tradesman nor would it carry the same rate of pay. He further submitted that although masks are provided by the firm, Mr. Lynch, notwithstanding his alleged allergy, declined to wear one.

In response to this latter allegation, Mr. Lynch explained that his refusal to wear a mask was due to his inability to bear any appliance on his face - besides which a mask did not help his condition.

Mr. Packham later argued that Mr. Lynch had chosen to ignore advice given to him by his medical practitioner to the effect that he seek specialist treatment. Mr. Lynch responded by informing the Commission that in his opinion a specialist would only confirm what he and his medical practitioner already knew; that his condition was due to an allergy aggravated by his exposure to flour.

There was also some disagreement between Mr. Packham and Mr. Lynch regarding the degree of exposure to flour he would have experienced in being assigned duties in various parts of the enterprise. For example, the oven area involved much less exposure than, say, the Dough Room.

However this information was too imprecise to be relevant to my determination of the matter in issue.

What is not in issue is that Mr. Lynch was able to produce two medical certificates issued by Dr. Dow, a medical practitioner practising in Burnie.

The first certificate was issued on 14 October 1986 and stated that:

The second and, I believe, vital certificate issued by Dr. Dow on 17 November 1986, was couched in the following terms:

"This is to certify that I have recommended that the above named person change his type of employment because of his allergy to flour.

He has suffered increasing severity of symptoms, allergic type rhinitis and also chest complaints, because of his continued exposure to flour in his work at Bass Bakery."

As a consequence of the issue of that certificate Mr. Lynch terminated his employment on 4 December 1987 and purchased a fruit juice outlet. He claims that since then his condition has improved to the extent that he has only had occasional attacks of the condition from which he suffered while at the bakery. However, he still cannot cope with flour - even in his own home.

As part of his detailed investigation of Mr. Lynch's complaint, Mr. O'Hallaran, who gave factual evidence in this regard at the Commission's request, tendered documentary material including details of a Department of Labour and Industry follow-up with Dr. Dow. Dr. Dow's reply was as follows:

"30 December 1986

Yours sincerely,
DR. D.W.M. DOW"

However, although Dr. Dow made reference to the fact that he had suggested to Mr. Lynch that perhaps he should see a specialist, two matters of importance emerged as a consequence; they are:

1. Dr. Dow did not in fact refer Mr. Lynch to a specialist; and

2. Mr. O'Hallaran's reminder that, unlike the Workers' Compensation Act, for example, the Long Service Leave Act does not envisage or indeed entitle an employer to challenge a certificate given by a legally qualified medical practitioner that bears directly upon the medical condition of a person in respect of whom a disputed long service claim has arisen.

In this regard the Act is silent. Nevertheless a reasonable man would accept a situation where an employee of some 13 years' satisfactory service produces and acts upon the advice contained in a certificate of a legally qualified medical practitioner of good standing.

However, if the employee concerned had a record of unsatisfactory service including, say, a record of unsubstantiated absences without reasonable cause, a reasonable man might, in the circumstances, be justified in challenging such a claim.

The Bass Bakery, through its agent, Mr Packham, fulfilled what I would regard as the reasonable man test. There was no evidence whatsoever of animosity between the bakery on the one hand and Mr. Lynch on the other. Moreover, Mr. Packham stated that in the event that the Commission found in favour of Mr. Lynch, that would be the end of the matter. In Mr. Packham's view he was either entitled to full payment or he was not. And in the event the decision favoured the employee, the company would not require time to pay.

Mr. Lynch also indicated he "would have to wear" whatever the Commission decided, and in response to a question regarding Dr. Dow's further comments relating to his suggestion that Mr. Lynch consider seeking specialist advice - a factor relied upon by the company in its opposition to the claim - he submitted that his condition had now improved to the point where he was enjoying much improved health; his domestic situation had improved, although he still snored, but to a lesser and (presumably) more tolerable degree. Furthermore, having just taken over a business he felt he could not spare the time to seek specialist attention for a complaint that has now diminished markedly.

As announced during proceedings, in deciding this matter I intend to apply the four tests laid down by Watson J. in the Computer Sciences Case1. These are:

1. Was the reason given by the claimant as the reason for termination one which fell within the relevant Act?

Conclusion: Yes! The claimant, supported by the evidence of the inspecting Department of Labour and Industry officer, confirmed that the applicant relied upon Section 8(3)(b) and 8(3)(c) of the Act. The relevant sections and subsections state that an employee may claim pro rata long service leave in circumstances where:

"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;

(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;"

I therefore find that the claimant did produce a certificate from a legally qualified practitioner stating that:

"17 November, 1986

TO WHOM IT MAY CONCERN

Re: Mr. Robert Lynch,
6 Grandview Avenue,
Burnie

This is to certify that I have recommended that the above named person change his type of employment because of his allergy to flour.

He has suffered increasing severity of symptoms, allergic type rhinitis and also chest complaints, because of his continued exposure to flour in his work at Bass Bakery.

Yours sincerely
DR. D.W.M. DOW"

There is no doubt that Mr. Lynch acted upon this advice and terminated his employment 17 days later.

An earlier-expressed view that Section 8(3)(b), because of the language used by the draftsman in framing it, could only apply in circumstances where the employer terminated an employee's services has been overturned on appeal in an obiter statement by a Full Bench of this Commission. Therefore I must accept the expressed view of that Bench that sub-clause 8(3)(b) is also available to an employee who terminates his own employment on medical grounds.

I therefore find that test No. 1 has been met. However, I reject the alternative argument that termination due to domestic reasons sufficient to justify that termination occurred.

The second test is:

2. Was such an opinion genuinely held by the worker and not simply colourable, or a rationalisation - meaning simply an opinion that he claimed he held to justify a position that he adopted at the time?

Conclusion: While I entertain some slight reservation in this regard, I am prepared to accept that Mr. Lynch genuinely believed his problem arose out of continual exposure to flour over a period of 13 years.

The third test:

3. Although the reasons claimed may not be the sole grounds which activated the worker in his decision to terminate, was it the real or motivating reasons?

Conclusion: I am unable to make a positive finding in favour of the claimant in this regard. I formed an opinion that working a fairly regular six-day week may have been a contributing reason for seeking another job. However, the evidence was not conclusive in this regard. Moreover, Mr. Lynch did not deny he was considering purchasing a business prior to termination. But his decision to do so was motivated by his medical condition.

The fourth test:

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?

Conclusion: On balance I feel that a reasonable man, convinced that his condition was caused through his regular exposure to flour, may have terminated his employment on the advice of his medical practitioner without seeking additional specialist attention. I have concluded that the action of Mr. Lynch may have been vindicated in any case, bearing in mind that he claims his prior condition has now improved consequent on his change in employment.

It remains a matter of conjecture whether a "reasonable man" would have decided to first consult a specialist and whether a "reasonable man" in the foregoing circumstances would have then continued his employment as a baker.

On balance I would give the benefit of that doubt to Mr. Lynch. I come to this conclusion because I am of the opinion that it is for the individual to decide whether or not he seeks further medical treatment from a specialist if the complaint itself is not life-threatening, but in fact likely to improve following a change of working environment.

One matter of concern to this Commission was the nature of the medical certificates provided as required by award over a period of years. Those certificates, which were accepted by the company, were so vague as to demand acceptance by the employer that a professional opinion had been formed that an employee was unfit for work, while the reason was to remain confidential.

This raises questions as to the possibility of employees in such circumstances being able to claim paid sick-leave for reasons which could have arisen from causes not acceptable; for example, alcohol abuse, misconduct, or matters of that kind. All of the certificates produced during the proceedings disclosed that the employee was unfit for various periods for reasons not related to workers' compensation. That was the only information provided.

No reflection is cast upon the professional integrity of the medical practitioners concerned, but rather upon the acceptability of medical evidence of this kind. However given the vagueness between those certificates produced by Mr. Packham and those produced in evidence during proceedings, I feel, a fortiori, the company should have accepted the detailed certificate subsequently provided by Dr. Dow. These were much more specific than those expressed in such vague terms as to constitute no more than a certificate that a professional view had been expressed that an individual was unfit for work for some reason other than one related to workers' compensation.

For all these reasons I will allow the claim and direct that Mr. Lynch be paid the amount determined by the Department of Labour and Industry, namely $3850.04.

L. A. Koerbin
PRESIDENT

1 A.I.L.R. No. 556 & 562