IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This dispute, referred by the Secretary for Labour, concerns a Mr Pinner who, after working for Hardie Iplex Plastics from 15 June 1976, terminated his own employment with the company on 8 November 1985. At that time he was employed as a Leading Hand Extruder Operator who worked rotating shiftwork.

On or about 29 June 1987 (approximately 19 months later), the Federated Miscellaneous Workers Union, on Mr Pinner's behalf, wrote to the company requesting payment for pro rata long service leave. The reason given was that Mr Pinner left his employment because of domestic or other pressing necessity.

It was claimed that the necessitous circumstance that resulted in Mr Pinner's resignation was occasioned by the fact that because his children suffered from ear infections and/or colic which kept them and the family awake at night, domestic problems began to emerge. Those problems persisted because Mr Pinner was a shiftworker and was not able to be home each night. This meant that Mrs Pinner needed to mind the children at night while her husband was a work. She was also expected to keep them quiet during the day when he was at home asleep. As a consequence her nerves suffered to such an extent that it was necessary for psychiatric treatment to be prescribed, although never administered.

Moreover, during this period, because the family lived at Karoola, it was difficult to obtain after-hours medical attention This added further strain to the family situation. Eventually Mr Pinner obtained employment as a farm hand. This meant that he could be home at nights as he worked only day work. Over time the family situation improved to such an extent that Mrs Pinner was able to take some casual work to supplement the income loss resulting from the employment changeover.

The Department of Labour and Industry Investigating Officer (Mr Bingley) gave factual evidence as to his enquiries into the matter. For the most part this was accepted by both parties.

Mr Smith, for the Company, acknowledged that at the time of resignation Mr Pinner apparently had a domestic problem that may have been work related as claimed. However, he raised three significant objections to the granting of the claim. Shortly stated they were:-

1. If Mr Pinner had a work-related domestic problem of the magnitude suggested, then the employee should have drawn that to the attention of his employer. Put another way, the employer, as a matter of principle should have been given an opportunity to consider Mr Pinner's problem with a view to either minimising it or removing it altogether. This was not done.
   

2. If the employee had the domestic problem as was suggested by Mr O'Brien and the DLI, why did he wait for 19 months following resignation before making a claim for pro rate [sic] long service leave?
   

3. Why did he not give this as a reason for his resignation?

Mr O'Brien, on the other hand, argued that as the Long Service Leave Act provides for pro rated payments after 7 years' service in circumstances where termination by an employee has taken place for either incapacity, domestic or other pressing necessity, subject to any statutory limitation a claim may be made at any time. And provided that an employee is able to discharge the onus put upon him to demonstrate that he terminated his employment for (in this case) domestic necessity, the employer is bound to grant the employee's request for payment.

As the Act does not require that an employee inform his employer of a domestic problem when it occurs (implying that if this was the case every employee would need to be aware of the requirements of the Act before making such a disclosure) it is not a defence on the part of an employer faced with a claim about which he has had no prior warning, to deny an otherwise bona fide claim on that ground alone.

However Mr O'Brien did acknowledge that "genuineness" might be a factor to be considered by the Commission in a contested case of that kind. But he did not agree with Mr Smith's submission that Mr Pinner had an obligation to seek relief from his employer before terminating his own employment for domestic reasons.

This is an extremely difficult issue to decide. On the one hand there is sufficient evidence before the Commission to conclude that Mr Pinner terminated his own employment for domestic reasons of one kind or another. He did not, it would seem, gain financially from the change. However, bearing in mind that he changed his employment from that of a leading hand 7-day shift worker who worked overtime to a farm hand working, presumably, day work, his reduction in income was not particularly dramatic.

There is also no doubt that the Long Service Leave Act makes provision for pro rata long service leave payment in circumstances where, after 7 years' service, an employee terminates his employment for, inter alia, domestic circumstances of a pressing nature. Moreover, I can discover no time limit (other than the statute limitation of 6 years) within which such claims must be lodged. It is of course not without relevance that whilst opposing the claim Mr Smith was prepared not to challenge the evidence that Mr Pinner did in fact terminate his employment due to domestic circumstances.

But that information was not transmitted to the company during or on conclusion of Mr Pinner's employment. Mr Smith indicated that through hearsay the company had become aware of the fact that Mr Pinner's resignation was related to Mrs Pinner's ill health which was exacerbated by the children's sleeping problems.

Against that there is, I believe, the "reasonable man" test. Was it reasonable to expect that Mr Pinner should approach his employer seeking relief from his employment-related or employment-exacerbated domestic problems? If so, no reasons at all were given why he did not. Although it was stated in evidence that Mr Pinner indicated that he had approached the then Factory Manager, Mr Fleming, about his problem, it appears that Mr Fleming left the company in December 1980. According to Mr Smith, this was approximately 2 years before the first of Mr Pinner's children was born.

Neither the company accountant nor the present factory superintendent could remember Mr Pinner ever having raised his domestic problems with them. Moreover, although the evidence in this regard was somewhat contradictory in substance, it was suggested that in all probability Mr Pinner would not have easily obtained day work employment with the company, as most positions were shift jobs. Furthermore, Mr Pinner was a shift leading hand. For him to revert to day shift, for example, would have necessitated the other leading hands changing to permanent afternoon or night shift work. This, it was suggested, would have been unacceptable to the individuals concerned.

Furthermore, although the Long Service Leave Act provides for pro rata payment, it would be unreasonable to expect that every employee should be aware of his potential entitlements in this regard. While one might expect that an employee would be reasonably familiar with his rights and obligations arising from an award under which he works, it is difficult to conclude that a working knowledge and understanding of the Long Service Leave Act is a necessary requirement. Nor, apparently, is there any need for that Act to be exhibited on the notice board as is usually the case with an award covering an employee's employment.

From the employer's viewpoint, the following must be considered:

1. If Mr Pinner spoke to the then factory manager about his problems, it must have been a different problem that he was experiencing as he did not have any children at the time.
   

2. Why was the employer not given an opportunity to examine Mr Pinner's problem with a view to minimising his difficulties or obviating them altogether - at least to the extent that the alleged problem was work related?
   

3. Why, on termination, was the employer not informed of the real reason for Mr Pinner's resignation?
   

4. Why was 19 months allowed to elapse before an application for pro rata long service leave was made?
   

5. Why, if part of the problem was caused by Mr Pinner working shift work, did Mr Pinner continue to work non-compulsory overtime shifts without question?
   

6. If Mr Pinner's domestic problems were as great as was suggested, presumably they did not cause him to lose any time as there was no evidence to suggest that he was ever late or unable to come to work because of family problems.

Applying the broad criteria referred to so frequently by this Commission as the Computer Sciences Case tests,1 I conclude in relation to the four tests as follows:

1. Was the reason claimed for termination one which fell within the section?

As "domestic necessity" is a reason that may be relied upon under the Long Service Leave Act 1976 [Section 8 (3)(c)] this question is answered in the affirmative.

2. Was such reason reasonably held by the worker and simply not colourable or a rationalisation?

It is difficult to make an unqualified finding in this regard. Without having had the benefit of sworn evidence from Mr Pinner, the Commission can only make a judgment on the best evidence available. In this regard the assertion that he approached a Mr Fleming about his position some two years before his first child was born, does not assist a positive finding in favour of Mr Pinner.

However, medical evidence obtained later supports that from time to time the Pinner children were sick. It also supports the assertion that Mrs Pinner definitely suffered from a nervous condition.

On balance, therefore, I am of the opinion that Mr Pinner did believe he had a work-related domestic problem. But this would have arisen, I suspect, after he spoke with Mr Fleming and at or about the time he resigned.

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

Again, without the benefit of tested evidence, this question is difficult to answer. Without details of the type of shifts worked - ie day, afternoon fortnight - the starting and finishing times of those shifts, as well as the extra annual leave attracted, it is hard to compare shift work with farm work.

Many farm hands have to work over a long spread of hours on all days of the week. But Mr Pinner may have worked only Monday to Friday. And the fact that his income was not significantly lower for the first year following resignation would suggest that he was either very well paid as a farm hand or that he worked a good deal of paid overtime.

Nevertheless no other possible reasons for leaving were suggested by Mr Smith or by the investigating officer. For that reason I am prepared to assume that Mr Smith's main reason for leaving was as stated. The question must therefore be answered in the affirmative.

4. Was the reason such that a reasonable person in the circumstances in which the worker found himself placed may have felt compelled to terminate his employment?

The flaw in this test is that one needs to assume that to be adjudged to have acted in the way that a "reasonable person" would have acted is to presume that a person not experiencing any domestic trauma could make a judgment about how another person under stress (including domestic stress) should have acted. This is hardly a test that ought to be applied in such an abstract sense.

Being totally removed from the situation with which Mr Pinner believed himself to be faced, it is easy enough to agree with Mr Smith that a reasonable man would have been expected to have approached his employer for some relief from shift work or some other alteration of his working environment. If that approach failed to achieve the desired result, then that might have been the time to have considered termination; or, as was suggested during proceedings, taking unemployment relief as an alternative to maintaining that employment.

Perhaps a move closer to Launceston and after hours medical services may have helped. But as Mr O'Brien observed, a residential move may well have had the opposite effect.

Despite having some reservations about the "reasonable man" test, there can, none the less, be very few reasons advanced to undermine the logic of Mr Smith's argument that a reasonable man would or should have afforded his employer at least an opportunity to consider the worker's problem. This was not done.

Furthermore, I do not believe that a reasonable man would have waited 19 months before making a claim for payment based upon "domestic necessity" unless it could be shown that the employee was genuinely unaware of his rights in this regard.

In summary, nothing put to the Commission by Mr O'Brien satisfactorily explained why it was that Mr Pinner:

(a) did not ask the company for help;

(b) did not indicate why he was leaving; and

(c) left it for more than 1 ½ years to make a claim for long service leave.

Accordingly I consider that the "reasonable man" test must be answered in the negative.

The Commission is therefore left with a finding that Mr Pinner in all probability left his employment for domestic reasons. But those reasons may or may not have been so pressing as to have justified the action taken at the time, although some 3 years later it would appear that the action taken by him was in fact justified. However the Commission is in no position to make a judgment whether, by staying on after having requested a change to day work or some other arrangement, Mr Pinner's circumstances would have changed to the extent that they appear to have changed today.

If the Commission was to defer judgment on all matters that come before it until after it had the benefit of hindsight of some years, ad hoc hearings of this kind would always be determined in retrospect. But a dispute occurs about an issue that is live and in need of speedy resolution.

Mr Pinner's difficulties occurred almost 3 years go and are now behind him.

The questions raised by this dispute are, I believe, fundamental to future consideration of matters of this kind that involve delayed applications, the eventual outcome of which may or may not have been different had they been lodged earlier, or referred to when giving reasons for termination. I therefore propose to refrain from deciding this matter until further evidence is presented or until the invitation now extended is declined.

I will afford Mr Pinner an opportunity to give evidence before a reconvened hearing to be set down as soon as possible. In particular, I should like to hear from Mr Pinner:-

(a) why he raised the matter with Mr Fleming;

(b) what, if any, company officials he raised the question of his domestic situation with following the birth of his children;

(c) why he did not give the company the true reasons for leaving;

(d) why he did not afford the company an opportunity to consider his domestic position;

(e) why his claim for pro rata long service leave was delayed 19 months;

(f) any other matters relevant to determination of this issue that have not already been dealt with -

Should this offer to reconvene be declined, the matter will be decided on the evidence now before the Commission.

L A Koerbin
PRESIDENT

1 Watson, J NSW Commission (1983) AILR No 556 @ 562