IN THE TASMANIAN INDUSTRIAL COMMISSION
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:
"This chap suffers from chronic nasal allergies. Flour appears to be a definite problem and it would be best if he could be in an area which limits his exposure to flour as much as possible."
The second and, I believe, vital certificate issued by Dr. Dow on 17 November 1986, was couched in the following terms:
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:
"Mr. C. Johnston
Long Service Leave Act 1976
I am in receipt of your letter of 16 December concerning my recommendation that the above named person change his type of employment because of his allergy to flour.
This chap has consulted me intermittently over the last four years concerning fairly severe symptoms of nasal allergy, which would only improve temporarily to return again at a later stage. He has always associated the worsening of his condition with exposure to flour at work. If he works in the areas where he was not so much in direct contact with flour dust the allergy would not recur. He has used various kinds of anti-allergic preparations which have not helped very much. At times the allergic symptoms in the nose have led to bacterial infections and sinusitis. This has on occasions led to bronchitis. The patient has tended very largely to try to put up with the symptoms, although using anti-allergic preparations when he could not tolerate the symptoms. At one stage we questioned whether he might be referred to an ear, nose and throat specialist, but he has not had a referral to an ear, nose and throat specialist.
It would certainly be in the patient's own interest perhaps to be formally tested by an allergist to determine the exact nature of his allergies, however in the past he has not been keen to submit himself to the subsequent desensitization injections, if a true allergy had been demonstrated. It was in view of this that recently when I was consulted on the matter I suggested that he would be entitled to leave work on medical grounds because of the aggravation of his symptoms.
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:
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?
I therefore find that the claimant did produce a certificate from a legally qualified practitioner stating that:
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?
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?
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?
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
1 A.I.L.R. No. 556 & 562