T7453
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Preston George Bennett and Muskett's Timber Sales Pty Ltd
Long Service Leave dispute - pro-rata entitlement - payment awarded/order issued REASONS FOR DECISION This application was lodged pursuant to s13 of the Long Service Leave Act 1976 (the Act) by Workplace Standards Authority seeking a hearing to settle a long service leave dispute over the non payment of pro-rata long service leave. The dispute is between Mr Preston George Bennett (the Employee) and Muskett's Timber Sales Pty Ltd (the Employer). The Employee is claiming an entitlement to pro-rata long service leave under s.8(3)(c) of the Act, which reads:- "(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." The entitlement to long service leave for an Employee who terminates his or her employment in accordance with the above is derived from s8(2)(b) of the Act, which reads:- "(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." At the outset of the hearing of this matter Mr R. Brown of the Tasmanian Chamber of Commerce and Industry, (TCCI) appearing for the Employer, questioned the Commission's jurisdiction to hear and determine this matter. Jurisdiction was challenged on the basis of the alleged coverage of the Employer by a Federal Award which provided for Long Service Leave. It was submitted by Mr Brown that this claim had already been before the Federal Commission and "dismissed". Following an adjournment during which the issue of jurisdiction was debated it was agreed by the parties that this application should proceed and the Employee through his counsel, Mr R. Baker, agreed that he would withdraw the claim before the Federal Commission. Mr Baker submitted that the claim in the Federal Commission had not been dismissed but effectively adjourned sine die. Having regard for the agreement of the parties, on the basis on which this matter should proceed, I have no interest in whether the Federal claim was dismissed or not. The applicant in this matter the Workplace Standards Authority, provided through a witness Mr B. Thomson a Senior Inspector, evidence going to the findings of Mr Thomson during his investigation of the Employee's claim. The background to this matter is contained in the evidence of Mr Thomson provided through a copy of his report1. That background from the report reads in part as follows:- "This is a claim for pro rata long service leave made by Preston George Bennett who was employed as a "Machinist" by Muskett's Timber Sales Pty Ltd at North Glen, Huonville. The claim is made under Section 8(3)(c)." and "Mr Bennett states that he was employed by Porta Mouldings Pty Ltd from 27 November 1985 until the company was sold to Muskett's Timber Sales Pty Ltd on 30 June 1992. He says that he continued to work in the same premises as an Employee of Muskett's Timber Pty Ltd until 31 January 1996 when he terminated his services due to domestic problems. Mr Bennett has produced a medical report relating to his wife's medical condition at the time of termination. Mr Bennett contends that he was forced to terminate his employment in order to look after his sick wife and his children and perform all household duties himself in addition to which he carried out those duties which his wife would have carried out on the farm on which they lived. Mr Bennett states that on 9th December 1995 his second child was born. The birth was complicated and his wife was continually hospitalised in December 1995 and January 1996. For a time Mrs Bennett was unable to look after her children, the home and carry out duties on the family farm. Mr Bennett states that he took on all duties himself. Mrs Bennett's prognosis was not known in January 1996 and Mr Bennett felt that he could not cope with the foregoing and a full time job, therefore he terminated his employment. Mr Bennett states that the only work he has done since that time is `a bit of farm fencing', when he can pick it up." Mr Baker relied on the evidence of the Employee and his wife, who both gave testimony which supported and elaborated on the background provided by the applicant as detailed above. That evidence he submitted supported the claim for pro rata leave and satisfied the requirements of the Act to the extent that the claim must be granted. There is no doubt in my mind from the evidence of the Employee and his wife that Mrs Bennett was incapacitated at the time of the Employee's resignation. There is also no doubt that she was unable to do the normal household chores and care for her children for some months in early 1996. These findings are also supported in a medical report by Dr Richard Climie.2 During some of this time home help and the Employee's mother assisted with the running of the home and the care of children, however these were not twenty four hour a day options. Help and care was required twenty four hours a day seven days a week for some months. The evidence was that the only real option for that care was the Employee himself. He thus resigned his employment to fulfil that need. The evidence going to the above was not challenged by the Employer. The Employer (Mr O. Muskett) in giving evidence maintained that he was unaware of the family circumstances at the time and so far as he was concerned the Employee had abandoned his employment. He was critical of the Employee for not having made contact with him during January 1996 prior to his resignation, as he maintained alternative working arrangements or extended leave may have been arranged. However, he conceded he made no effort to contact the Employee during this period. The Employee on this issue gave evidence to the effect that he had contacted or spoken to the Foreman/Supervisor (Mr N. Allan) during December/January 1995/96 and that he was fully aware of the Employee's personal circumstances. The Foreman was in fact the Employees brother-in-law, giving added credence to the evidence of the Employee that management knew of his personal circumstances at the time. In any case having regard for the wording of the Act I believe that for this claim to be successful I only have to satisfy myself that the reasons relied on by the Employee for his termination satisfy the requirements of s.8(3)(c) of the Act. Having done so I have no discretion in respect to other considerations. Having already determined that I accept the evidence that the Employee's wife was almost totally incapacitated for a period in excess of three (3) months from mid December 1995, I find that the Employee resigned; on account of domestic necessity of such a nature as to justify the termination of his employment. The report of Mr Thomson also contained the following:- "Calculation of Possible Entitlement: The above dates, calculations and figures were not challenged during the hearing. For the purposes of an order in this matter I will rely on them however, I make it clear that should the Employer dispute any part of the above I will be available to the parties to assist in clarifying any errors should that be necessary. I order that Muskett Timber Sales Pty Ltd pay to Mr P.G. Bennett the amount of $3749.98 the pro rata long service leave entitlement due to Mr Bennett in accordance with s.8(3)(c) and s.8.2(b) of the Act. The payment to be made to Mr Bennett by the close of business on 31 March 1998.
J G King Appearances: Date and place of hearing: |