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T7348

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s15 referral of long service leave dispute

Angela Ruth Dodge
(T7348 of 1997)

and

Robert William Hawes and Doreen Mary Hawes
trading as Eastside Milk Bar

 

COMMISSIONER P A IMLACH

HOBART, 6 July 1998

Long service leave dispute - pro rata entitlements - arbitrated - payment ordered

REASONS FOR DECISION

This was a dispute referred to the Commission for hearing and determination under Section 13 of the Long Service Leave Act 1976 (the LSL Act).

The dispute concerned a claim for a proportionate long service leave entitlement under Section 8(2)(b) and Section 8(3)(d) of the LSL Act by Mrs Angela Ruth Dodge of Ravenswood against her employers Robert William Hawes and Doreen Mary Hawes trading as Eastside Milk Bar also of Ravenswood (the employers).

At the hearing in Launceston on 20 January 1998, Mrs Dodge represented herself and Mrs Hawes represented the employers. Mr G Thomas appeared for the Chief Executive of the Workplace Standards Authority.

Mrs Dodge had been employed at the Eastside Milk Bar for a period of seven years and five and a half months. She had commenced work at the milk bar on 18 December 1989 and her employment was terminated by the employers on 28 May 1997, but, not for any kind of misconduct.

During the period of Mrs Dodge's employment at the Eastside Milk Bar it had three consecutive owners. The employers accepted that transmission of employment had occurred in accordance with Section 5(4) of the LSL Act.

Mrs Dodge commenced work for the employers at the Eastside Milk Bar on 16 July 1996.

The relevant parts of Section 8 of the LSL Act provide as follows:

    "8(2) ... the period of long service leave to which an employee is entitled under this Act is -

(a) ....

(b) in the case of an employee to whom this paragraph applies by virtue of subsection (3) who has completed 7 years', but has not completed 15 years', continuous employment with his employer such period of long service leave as bears the same proportion to 13 weeks as the total period of the employee's continuous employment with his employer bears to 15 years.

    8(3)  Subsection (2)(b) applies to -

(a) ....

(b) ....

(c) ....

(d) an employee whose employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee."

The employers contended that Mrs Dodge was not entitled to a proportionate long service leave payment as claimed because, in the four week period between 1 November 1996 and 29 November 1996 inclusive, Mrs Dodge had only worked a total of 21 hours for the employers, therefore, they contended her continuity of employment had been broken because of the terms of Section 5(3) of the LSL Act.

The relevant part of Section 5(3) of the LSL Act provides as follows:

    (3)  Without limiting subsections (1) and (2), where an employee is regularly employed by an employer for not less than 32 hours in each consecutive period of 4 weeks, the employee shall be deemed for the purposes of this Act to be continuously employed by the employer, notwithstanding -

(a) ... ;

(b) ... ;

(c) that, apart from this subsection, the employee would be regarded as being engaged in casual employment; or

(d) ...."

Mrs Dodge claimed that she had been at work during the week ending 29 November 1996 and therefore she had completed more than 32 hours work during the four weeks in question. Even though Mrs Dodge brought one of her previous employers as a witness I find there was no direct or real evidence to support Mrs Dodge's claim that she had been at work during the week ending 29 November 1996. Whilst I do not consider the fact of crucial significance, I note that the reduction in the hours of Mrs Dodge's work, for the four week period ending 29 November 1996, was not at her instigation.

Mr Thomas appearing for the Chief Executive of the Workplace Standards Authority submitted that, as in this case, where an employee had been "regularly employed by an employer for not less than 32 hours in each consecutive period of 4 weeks," except for one instance only when less than 32 hours were worked for one period of four weeks, the employee should be taken overall to have worked "regularly" in accordance with the terms of the LSL Act.

Mr Thomas, after first noting that Mrs Dodge had been a casual employee during her time with the employers, also relied on a 1997 decision by Magistrate M A Hannon1 which found that a casual employee's employment was terminated and recommenced for each separate period of work and he pointed out that there seemed to be an anomaly in the LSL Act between Section 5(3) (as previously quoted) and Section 5(1)(g) which latter provided:

    "5(1) For the purposes of this Act, employment (whether before or after the commencement of this Act) shall be deemed to be continuous notwithstanding -

(a) ...

(b) ...

(c) ...

(ca) ...

(d) ...

(e) ...

(f) ...

(g) the termination of the employment of an employee for any reason other than on account of slackness of trade, but only if he is re-employed by the same employer within 3 months after the date of that termination;"

DECISION

Section 7A of the LSL Act provides the basic entitlement to long service leave:

    "7A. Subject to this Act, an employee is entitled to long service leave on ordinary pay in respect of continuous employment with an employer."

The term "continuous employment" is not defined in the LSL Act. The dictionary2 says "continuous" means connected, unbroken, uninterrupted in time or sequence. When this meaning is applied to the circumstances of this case it is clear that Mrs Dodge's employment was unbroken or uninterrupted even though for one short period her hours of work were less than usual and in that same period she did not work at all for one week.

Section 5 of the LSL Act, in its entirety, provides for certain limited employment circumstances (which otherwise might break continuity of employment) to be deemed as continuous. Subsection (3) of Section 5 operates in that way, in that it provides for employment that is regularly not less than 32 hours in each consecutive period of 4 weeks to be deemed as continuous employment: the subsection does not say that continuity of employment is broken when an employee works for less than 32 hours in any four week period. I do not accept that this provision is capable of being used in reverse to deny continuity. It follows that I do not accept Mr Thomas' submission that there is an anomaly between Section 5(3) and Section 5(1)(g) of the LSL Act.

For these reasons I find that Mrs Dodge is entitled to payment for a period of long service leave as provided for specifically under Section 8(2)(b) and 8(3)(d) of the LSL Act.

I note that Mr Thomas was of the view that Mrs Dodge's period of employment ought to be reduced by one month in accordance with the prescriptions of Section 5(2) of the LSL Act and presumably Section 5(3). I agree that Mrs Dodge's period of employment ought to be reduced in accordance with Section 5(2), but, only for the one week during which she did not work. I consider Section 5(3) does not come into consideration when reviewing the period of employment (as opposed to continuity of employment).

The relevant calculations are as follows:

 

Period of
Employment
18 Dec 89 to 28 May 97 less 7 days  

    18 Dec 89 - 18 Dec 96 = 7 years

 
 

    19 Dec - 31 Dec = 13 days

 
 

    Jan 97 = 31 days

 
 

    Feb 97 = 28 days

 
 

    Mar 97 = 31 days

 
 

    Apr 97 = 30 days

 
 

    May 97 = 28 days

 
 

    SUB TOTAL OF 161 days

 
 

    Less 7 days = TOTAL OF 154 days

 
  Therefore 7 154/365 =

7.4219 years

     
Ordinary Pay Rate (Weekly) Based on Workplace Standards Authority calculations

$241.66 p/w

     
Pro Rata $7.4219 yrs x 13 wks / 15 yrs LSL

6.4323 weeks

Entitlement    
     
Payment    
Entitlement 6.4323 wks x $241.66

$1554.40

ORDER

In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order that, within fourteen days from the date of this decision, Robert William Hawes and Doreen Mary Hawes trading as Eastside Milk Bar of 2 Prossers Forest Road, Ravenswood 7250, pay to Angela Ruth Dodge of 5 Kathryn Court, Ravenswood 7250, the sum of one thousand five hundred and fifty four dollars and forty cents ($1554.40) being a payment due under the provisions of the Long Service Leave Act 1976.

 

P A Imlach
COMMISSIONER

Appearances:
Mrs A Dodge, with Mrs M Pickrell, for Angela Ruth Dodge
Mrs D Hawes, with Mr R Hawes, for Robert William Hawes and Doreen Mary Hawes trading as Eastside Milk Bar

Date and place of hearing:
1998
January 20
Launceston

1 Exhibit T2, Mercury Newspaper v Verrell, Court of Petty Sessions, Hobart, 1977
2 The Concise Oxford Dictionary