T7454
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mr Daryl Preston Woolley and Muskett's Timber Sales Pty Ltd
Long Service Leave dispute - pro-rata entitlement - order issued REASONS FOR DECISION This application was lodged pursuant to s.13 of the Long Service Leave Act 1976 (the Act) by Workplace Standards Authority seeking a hearing to settle a dispute over the non payment of pro-rata long service leave. The dispute is between Mr Daryl Preston Woolley (the Employee) and Muskett's Timber Sales Pty Ltd (the Employer). The Employee claimed entitlement to pro-rata long service leave in accordance with s.8(3)(b), 8(3)(c)and 8(3)(d) of the Act, that is:-
The application was listed for hearing on 25 February 1998. As in a matter involving a similar claim against the same employer on 23 February 1998,1 this matter had previously been before the Federal Commission and had allegedly been dismissed. However, the parties as in T.7453 of 1998, agreed to proceed with this application and Mr Baker (of Counsel) for the Employee agreed to withdraw the claim before the Federal Commission. Mr R. Millhouse for the applicant called Mr B. Thomson, Senior Inspector, as a witness who in turn read into transcript his report on his investigations into this claim. Part of that report provides the background to this matter and reads:- "Mr Woolley states that he was employed by Porta Mouldings Pty Ltd from 16 February 1984 until the business was sold to Muskett's Timber Sales Pty Ltd on 30 June 1992. He then became an employee of Muskett's Timber Sales on transmission of the business and he worked in the same location, until 20 March 1996 when he claims he was forced to terminate his services due to his own sickness, but more importantly his wife's medical condition. Mr Woolley contends that he was forced to terminate his employment because he was suffering from depression and anxiety which he says was caused by conditions at work and a demotion after the business was taken over by Muskett's Timber Sales Pty Ltd. He says that due to his problems he suffered blackouts, which required medical attention. He also says that he began drinking to excess. He states that he saw a doctor about 2 years prior to his termination. He says that due to the foregoing his problems reached such a level that his marriage was put in jeopardy. In mid February Mrs Woolley became disabled with a severe back problem, and was admitted to the Huon District Hospital on 16 February 1997. Subsequent to this she required ongoing assistance at home, with domestic chores and children. For the foregoing reasons on 13 February 1997 Mr Woolley terminated his employment by giving one week's notice verbally to Noel Allan, his Leading Hand. On 15 February 1997 Mr Woolley spoke with Mr Owen Muskett by phone. He was told that one month's notice was required for termination and that this was not open to negotiation. On 19 February 1997 Mr Woolley had to take his wife to Hobart for a C.A.T. Scan. He handed a medical certificate relating to this to his Leading Hand the following day, 20 February 1997 and was told that he was finished up and to go home. Shortly after termination he gained casual employment in an Orchard. He knew of the vacancy there and applied for the position because the nature of the work gave him the flexibility to look after his wife and children, and reduced the medical stresses which caused his own personal problems." Some of the dates in the above are obviously incorrect but I have left them as an accurate reflection of what was contained in Ex M.1. Mr Baker of counsel for the Employee relied on the evidence of the Employee and his wife (Mrs Susan Woolley) to support the claim for payment of pro-rata long service leave. The Employer's evidence confirmed the above background provided in Mr Thomson's report and in detail described his personal condition and problems at the time of his termination from Muskett's Timber Sales Pty Ltd in February 1996. He described how he was demoted from his position as leading hand where he was responsible for timber sales, direct customer contact and six employees, to a dockers position in another shed. This demotion occurred without notice or reasons and occurred not long after the new employer took over the business in 1992. The change caused him to feel "Like they was trying to get rid of me", "down-graded" and "undermined"2. His evidence was that from an easy going person who liked his work he became depressed, agitated and irritable and started drinking heavily to help him relax and get over his depression. These symptoms and his drinking began to dramatically effect his home life where his agitation with his children caused them to avoid him and his relationship with his wife became very strained. Over time his wife threatened to leave him if he did not change. Part of her evidence is as follows:- "Mr Baker cross-examining Say, by 1995, how was your relationship with your husband?......Not much. Were you talking at all?......Oh, very little. Could you talk to him?......Mm - I'd be lucky if he'd have a conversation, really." and "So you thought he was headed for alcoholism, did you?.....Yes, I did, yep. Yes." and "Now, was there ever a time when your husband's behaviour and drinking threatened your marriage?.....Yes. When was that?.....Oh, over that period of time. It got worse and worse and I just couldn't - I just didn't know what else to do. And I just said to him, well, if you don't buck your ideas up I'm going or you've got to get out, because I just couldn't take it any more and I didn't want the kids seeing him like it. I hated that." and "So how many - did you give your husband an ultimatum at any stage?.....Yes. Yes. How many times?.....Mm. I'd say twice.. Right. When was the last time?.....When it got really bad towards the end when he was just so - well, he was just depressed."3 The Employee also gave evidence that his excessive drinking at that time caused him to have blackouts. They would occur at any time while he was drinking and he believed only as a result of his excessive drinking. The Employee did not have any medical certificates or other documentation which would confirm his evidence going to his condition and symptoms at that time. The Employee explained this away by saying he was not a Doctor's person and that in any case he felt the answer to his problems was in his own hands. His explanation is recorded as follows:- "Deputy President King: Is there any other documentation or evidence that you can produce, other than the things that you have said under oath today, which would give some confirmation of the things that you have said in relation to your condition in February 1996? Your drinking and the way you felt, your depression? No, not really. I just - I didn't go to the doctor because I didn't feel that - in my mind he couldn't help me. Deputy President King: Why did you feel a doctor couldn't help you? Witness: Mainly because I was, one, too embarrassed to go and, two, I thought I could get myself out of it. Deputy President King: And you could get yourself out of it by doing what? Witness: Well, in the end by terminating my position."4 Mrs Woolley gave evidence going to her medical condition at the time of the Employee's termination. That evidence in part is:- "Mr Baker cross-examining Right. Now, you've made mention of the fact that you've suffered from a back complaint.....Mm. When did you first start suffering from that?.....Mainly after I had the children, I suffered a bad back. Right.....But, then, it was enough, like I could actually still work at home and do the chores at home. And then about a fortnight before Darrel left I - well, my back just came - gave way and I had to lay flat on the floor for a fortnight. I had to get my mum to come in and look after me and the children and do the work. So, and then, of course, I had to go into hospital on the Friday and had to lay flat in there because my back wasn't coming right and then on the Monday morning I had to go through to the place where they do the CAT Scans and have a CAT Scan on my back. And that's - on that date, from then to the 16th February, I take it that you were lying flat on your back, were you?.....That's correct, yep. Before you were in hospital?.....Yeah. Right. Did you know how long you were going to be indisposed for?.....No. No."5 Both the Employee and Mrs Woolley gave evidence going to the effect on the Employee of his termination from the Employer's business. That evidence is best summed up in the following testimony from Mrs Woolley:- "Mr Baker cross examining No. And once he left Porters - Sorry, once he had left Muskett's - was there any change in your husband's demeanour?.....I had a different person. He was just different. I had comments from my family to say that he was just a different person. We could sit down at tea time, we'd talk, the children would be so excited to get home and talk to him and tell him what they'd done for the day and it was - they were so excited to hear what he had done. Right, Well, you say you had a different person - was this the person that you married, or -?.....Yes. - a different person still?.....No, he'd gone back to the person I had married."6 The Employer's case in this matter is that the Employee resigned to take up another job and at no stage leading up to his termination did the Employee raise concerns about his job or his family situation. The Employer provided supporting evidence to the above in the form of a daily report sheet for 8 February 1996, completed by the Foreman Mr N. Allan. Against the daily time entries for the Employee is the hand written notation "gave his notice, going to work on apple orchard". This work sheet was received by the Employer (by fax)7 on the 9th February 1996 however, the Employer gave evidence that he was also advised by Mr Allan on 8th February 1996 by telephone of the Employees notice and his reason for leaving. The Employee in cross examination conceded that he must have known about the vacant position in an orchard prior to 8th February 1996 and made some comment to Mr Allan which resulted in Mr Allan's notation on the daily report sheet. However, he denied that on 8th February he had another position to go to and maintained that the job at the orchard was not advertised until after he gave his notice to the Employer. The Employee does not dispute that he commenced a job on an orchard soon after leaving the Employer and still works at that same job. The issue for my determination in this matter is what really motivated the Employee's termination in February 1996? Or was he in fact terminated by the Employer? The first of the three provisions of the Act relied on by the Employee in making this claim is s.8(3)(b) which allows a claim where the employee suffers an "illness of such a nature as to justify the termination of the employment." There was no medical evidence produced in this case which would allow me to conclude that the Employee satisfied the above provision of the Act. I accept from the evidence that the Employee was drinking heavily at the time of his termination. I also accept from the evidence that he was depressed, agitated and irritable. However, there is no medical evidence to support a claim for termination on the grounds of personal illness. This part of the claim is therefore dismissed. Section 8(3)(c) allows a claim based on incapacity or "domestic or other pressing necessity of such a nature as to justify the termination of that employment". There was no evidence presented which would support a claim going to incapacity of the Employee. While the incapacity of Mrs Woolley at the time of termination was relied on by the Employee I am not convinced from the evidence that this was a substantial influence on the Employee's decision to terminate his employment. I concede it may have been a factor but the evidence is clear that Mrs Woolley has on-going back problems that have been managed over the years. She did have a period of hospitalisation in February 1996 however, this did not occur until after the Employee had given his notice. I reject this ground. The substantial evidence in this matter went to the Employee's state of mind following his loss of leading hand status and the consequent increase in alcohol consumption. I have detailed some of the critical evidence of the Employee and his wife on these aspects earlier in this decision. I accept the thrust of that evidence. I accept from the evidence that, the manner in which the Employee was advised of his "demotion", the isolation from his workmates and the consequent environment at the workplace, were the cause of his depression and irritableness. These conditions continually fed by his attendance at a workplace where he felt unwanted and badly treated led to his heavy drinking to gain some relief. I accept the evidence of the Employee and his wife that at the time of his resignation their marriage and family life were substantially at risk and the indications were that this situation would only get worse. It is therefore my finding that the Employee resigned on account of "domestic or other pressing necessity of such a nature as to justify the termination of that employment." Having determined as I have in relation to the above it is unnecessary for me to make a decision in relation to the third ground relied on by the Employee i.e. going to s.8(3)(d) of the Act. The fact that the Employee at least knew about another job, if he hadn't already been offered it, at the time of his termination is of course an important consideration in this claim. It goes without saying that if I had accepted that alternative employment was the major motivation of the Employee in resigning his employment this claim could not succeed, but I believe the evidence is clear. The Employer in this matter, as in T.7453 of 1998, was critical of the Employee for not approaching him with his problems to see if they could be resolved before taking the decision to resign. I simply make the observation that communication is a two way thing. The calculation of the entitlement in this case is contained in Mr Thomson's report,8 I use that calculation as the basis for the following order. However, if there is a dispute over its accuracy I will be available to assist the parties resolve any issues. ORDER I order that Muskett Timber Sales Pty Ltd pay to Mr D.P. Woolley the sum of $4,476.08 the pro-rata long service leave entitlement due to Mr Woolley in accordance with s.8(3)(c) and s.8(2)(b) of the Act. The payment to be made to Mr Woolley by the close of business on 9 April 1998.
J G King Appearances: Date and place of hearing: 1 T7453 of 1998 |