T7698
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Glen Thomas Goodyer and Launceston Linen Service Pty Ltd
Long service leave dispute - pro-rata entitlement - illness - arbitrated - payment awarded - Order issued REASONS FOR DECISION This application was made pursuant to Section 13 of the Long Service Leave Act 1976 (the Act) for a hearing to settle a dispute, between Glen Thomas Goodyer (the employee) and the Launceston Linen Service Pty Ltd (the employer), concerning the non-payment of pro-rata long service leave. The employee was claiming an entitlement to pro-rata long service leave pursuant to Section 8(2)(b) of the Act for reasons specified in Section 8(3)(b); that is -
Having considered:
I now summarise the facts and contentions arising out of this application. The employee, who suffered from chronic asthma, operated dry-cleaning machines, which used perchloroethylene as a cleaning solvent. He commenced employment with the employer on 5 November 1985 and ceased on 24 February 1997, totalling 11.307 years of continuous employment. Whilst on one week's leave in the middle of 1996, the employee, who used prescribed drugs to control his asthma, noticed an improvement in his asthmatic condition. As a result he decided that, if his health improved during the next period of leave, he would terminate his employment. In February 1997, he took his next lot of leave and, once again, his health improved. Consequently, and while he was still on annual leave, the employee formed the view that he should terminate his employment, so he made an appointment to consult his medical practitioner to talk about the issue. The employee's regular doctor, Dr Fair, was on leave at the same time, so the employee spoke with Dr Morris. In his medical report dated 21 February 1997, Dr Morris noted that the employee wished to resign his position with the employer for medical reasons and seek employment elsewhere. On Monday, 25 February 1997, at about 4.00 pm, the employee hand delivered to the employer the medical report written by Dr Morris, dated 21 February 1997, and a letter terminating his employment which stated:
It was the employee's evidence that, in addition to handing over the previously mentioned documentation, he said to the employer that "I feel my asthma is better when I'm not here"2 to which, it was said, the employer responded "I wish I could get out of the place that quick".3 The employee then left the premises. On Thursday, 28 February 1997, being pay day, the employee contacted the employer and enquired about collecting his pay and long service leave payment. The employer told him that he was not entitled to long service leave as the doctor's certificate was not good enough and, he requested the employee to obtain another certificate. At a later time, the employee obtained a report from Dr Andrew Fair, who acknowledged the employee had been a regular patient of his since 1980. He said the employee had a history of asthma and, in the past 10 years the asthma had prevented the employee's attendance at work or continuing with his ordinary duties for a short period of time. In that report, dated 6 March 1997, Dr Fair said:
The employee said that Dr Fair tested him on the "peak-flow"5 equipment which showed that he was "blowing twice as much"6 as he would have normally. In response to a query, Dr Fair, on 11 March 1997, wrote to the employer about the difference in his report compared with that of Dr Morris. In that letter, Dr Fair pointed out that Dr Morris had only seen the employee on one occasion, being the date he issued his letter of 21 February 1997, and that the employee's progress notes were not available to him and that was the reason for a somewhat non-committal report from Dr Morris. Dr Fair went on to say:
He continued:
On 25 August 1997, Workplace Standards Authority requested a further medical report from Dr Fair, as the employer was disputing the employees illness was not of such a nature as to justify his termination. They sought from Dr Fair:
In that report, dated 29 September 1997, Dr Fair stated:
A significant proportion of the evidence adduced from the witnesses, [which I must say conflicted on a number of occasions] centred around the quality of the air within the employee's work environment, with special emphasis on the types of dry-cleaning machines operated by him and the fumes given off by perchloroethylene, the cleaning solvent. The employer said the machine (Donni) operated by the employee, most of the time, immediately prior to his termination, was installed during 1996. He said it was manufactured in Europe and met the latest European environmental requirements. The employer said the main feature of that machine was it's closed-loop, whereby the cleaning agent, perchloroethylene, was evaporated off at the end of the cycle and condensed back into a holding tank before the door to the machine bowl could be opened. However, it was the employee's evidence that the condensing arrangement, used to deodorise the perchloroethylene fumes, had been modified by diverting the flue through the roof to vent the machine directly into the outside atmosphere. It was also the employee's evidence that, even with the introduction of the new and more sophisticated machine, it was nearly impossible to eliminate the smell of the solvent, as it was still on the clothes when they came out of the Donni machine. However, he recognised the fumes were not as bad as when compared with the older machine. The employer acknowledged that the second and older machine, which the employee had operated occasionally, since 1996, did not have the same sophisticated controls as the new (Donni) machine. In any case, the employer said, the employee could have asked to be moved but that request was never made. The employer said he employed two other persons who were asthmatics, who say that the nature of the job was not a problem, in fact the steam helped their asthma. Mr Flood, of the Tasmanian Chamber of Commerce and Industry Limited, for the employer, whilst not disputing the employee suffered from asthma, was of the view that Dr Fair made an assessment supporting the employee's decision to terminate his employment, purely on the advice of the employee. Mr Flood said, Dr Fair did not discuss the matter with anyone associated with the Launceston Linen Service, nor had he visited the site to determine for himself the extent of the exposure the employee had to perchloroethylene. However, he recognised that it was up to Dr Fair to make himself aware of the detail of his patient's condition, as he sees fit, and the employer did not intend challenging his written report. Mr Flood said, that on the evidence provided to Dr Fair, the report appeared to be correct. However, he challenged the advice given to Dr Fair by the employee; that is, his exposure to perchloroethylene caused his asthma to worsen. He said that the employee made his decision to terminate his employment based solely on his own feelings on the matter and there was no medical evidence at the time to support his decision to terminate his employment. Mr Flood submitted that:
In support of that contention, Mr Flood relied on an unnamed matter reported in The Australian Industrial Law Review 1966 Item No.169.12 Mr Flood said, the evidence showed that the employee failed to request alternative work within the Launceston Linen Service at the time he terminated his employment or, in fact, at any other time. Whilst he recognised the failure to make such a request did not disqualify the employee from receiving a payment for long service leave, nevertheless, Mr Flood highlighted the fact that the employer, in his evidence, stated that, if a request for alternative work was put to him by the employee, he would have been able to provide him with work. The employee acknowledged that he had not applied for alternative duties with his employer, as he was of the opinion that none were available. He said, apart from himself, there was only one other person who could operate the dry cleaning machine. Mr Flood concluded his submission by suggesting that options, other than terminating his employment, were open to the employee and, because he had other options, his illness did not actually justify terminating his employment. Mr Flood said it may have justified him taking up other work with the employer. FINDING I am not able, nor am I required, to determine the air quality within the employee's work area, as a result of perchloroethylene being used as cleaning solvent. Even if there was a need to do so, it would be very difficult, as the evidence showed there was no scientific systematic testing of employees for exposure to perchloroethylene. Indeed, it had been approximately 8 years since the employee was required to wear a special badge to measure his exposure to the solvent and, even then, he was never given a copy of the test results, nor were they made available during the course of this hearing, apart from a less than precise observation by the employer that "in the industry as a whole they found.....there were very limited vapours in the work areas".13 During the course of his submissions, Mr Flood placed some emphasis on the fact that, whilst the employee may have had an illness that would justify him terminating the actual work he performed, nevertheless, his illness would not justify him terminating his employment. In addition, Mr Flood said, the employee failed to request alternative work with the Launceston Linen Service, either at the time of termination or at any other time. The employer, during the course of giving his evidence, stated that alternative work existed for the employee within the Launceston Linen Service, had he requested it. However, the employer never offered the employee an alternative position, even though he knew the employee was an asthma sufferer; nor did he try to persuade the employee to avail himself of a different position within his establishment, away from any odours generated by the use of perchloroethylene. I do not accept that an alternative position genuinely existed, as there was no evidence to suggest that the employer gave any consideration to relocation, either at the time of termination or at any other time. Indeed, in his evidence, the employer said "... I was quite pleased to get the resignation".14 Irrespective of the foregoing, there is no requirement under the Act for employees to seek alternative employment with the employer as a precursor to eligibility for pro-rata long service leave. Simply stated, my task in this matter is to determine whether the employee terminated his employment with the employer on account of his illness and whether that illness was of such a nature as to justify his action. The facts and circumstances of this case lead me to conclude, that the employee resigned his employment because he could no longer work in an environment that he believed exacerbated his asthma. This illness, in my view, was the sole motivating reason for terminating his employment and was a belief genuinely held by him. This action of the employee was later supported by his regular doctor, who confirmed that he had suffered from "chronic asthma" and he "should avoid working environments where he is likely to be exposed to these type of irritants". Dr Fair was of the view that, the employee had "been suffering significant exacerbations while working at the Launceston Linen Service ". It was also his opinion that, at the time of termination, the employee's asthma "justified termination of his employment". Having considered all the reports written by Dr Fair, I would have to conclude that the employee's illness was of such a nature as to justify his termination, and therefore I determine the employee is entitled to his pro-rata long service leave in accordance with Section 8(3)(b) of the Act. Given my findings in this matter, I hereby Order, pursuant to Section 13(3) of the Long Service Leave Act 1976, that Launceston Linen Service Pty Ltd, ACN 009 517 560, trading as Launceston Linen Service, 19 Hobart Road, Launceston, Tasmania 7249, pay former employee, Glen Thomas Goodyer of 52 Faulkner Road, Ravenswood, Tasmania 7250, an amount of Three thousand eight hundred and fifty seven dollars and four cents ($3,857.04) for accrued pro-rata long service leave entitlement, and further that such payment be made on or before the close of business on Wednesday, 29 July 1998.
R J Watling Appearances: Mr G Maloney for Glen Thomas Goodyer Date and place of hearing: 1 Workplace Standards Authority, Report on investigation, page 8 |