T8954
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Leigh Ann Howard and Donald Andrew Pattullo
Long service leave dispute - pro rata entitlement - whether the termination of employment was at the initiative of the employer - whether the employee resigned because of domestic necessity - finding that the termination was at the initiative of the employer - entitlement to pro rata long service leave - payment ordered REASONS FOR DECISION This application was made by the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, pursuant to s.13 of the Long Service Leave Act 1976 for a hearing to settle a dispute concerning the non-payment of pro rata long service leave. On 1 May 2000 the matter was referred to me by the President, in accordance with the provisions of s.15(1)(e) of the Industrial Relations Act 1984, for hearing and determination under the provisions of the Long Service Leave Act 1976. The dispute was between Leigh Ann Howard (the employee) and Donald Andrew Pattullo, t/a Eastern Shore Veterinary Hospital (the employer). The employee was claiming an entitlement to pro rata long service leave pursuant to s.8(2)(b) of the Act for reasons specified in s.8(3)[c] or 8[3][d]; that is -
A hearing was set down for Monday 26 June 2000, which was changed, at the request of the applicant, to 10.30 am, Wednesday 12 July 2000. With the consent of the parties the date of hearing was again changed to Wednesday 19 July 2000, at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania, before myself, to commence at 10.30 am. Mr Simon Fishwick appeared for the employee; Mr Don Pattullo, the employer, represented himself; and Messrs Robert Millhouse and Don Schofield appeared for the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania. A report prepared by Mr Schofield, an Inspector with Workplace Standards Tasmania, as amended, and as agreed between the parties, was submitted to the Commission. Background Mrs Leigh Ann Howard commenced employment as a veterinary surgeon with Donald Andrew Pattullo trading as Eastern Shore Veterinary Hospital on 21 May 1985. For most of her employment, until the period before she went on maternity leave, Mrs Howard was employed on a full time basis, rostered on for an average of 40 hours per week. She was paid a flat hourly rate, which included a component in lieu of paid leave. On 20 June 1998 Mrs Howard began a period of maternity leave with the intention of returning to work on 19 April 1999. On 23 February 1999 Mr Pattullo telephoned Mrs Howard, during which conversation she advised Mr Pattullo that she would be unable to return to full time employment. During this conversation Mr Pattullo made an offer of part time work for three mornings a week. There is a dispute between the parties as to whether the offer related to the period before return to work from maternity leave, or after the return to work. On 24 February there was a second telephone conversation during which Mrs Howard advised Mr Pattullo that she would be unable to work full time for a year or two. Mrs Howard's baby was born with a facial abnormality, making breast feeding difficult and time-consuming. At that time, Mrs Howard's husband was a shift worker. There is a dispute as to whether or not she advised her employer that the reason for her inability to return to full time work was domestic necessity. Mr Pattullo claims that Mrs Howard terminated her employment during this telephone conversation, by way of her stated inability to return to full time work. On 30 April 1999 Mrs Howard visited the surgery and was told by Mr Pattullo that she was now a casual employee. On 4 May 1999 Mr Pattullo advertised for a veterinary surgeon in the Australian Veterinary Journal. On that same date Mrs Howard rang Mr Pattullo and asked if she should resign. Mr Pattullo said to her that there was no need to resign. On the 6 May 1999 Mrs Howard wrote to Mr Pattullo with some suggested times that she would be able to work. Mr Pattullo did not reply to that letter. During late May 1999 Mrs Howard was informed by clients that they had been advised that she no longer worked in the practice. Mrs Howard claims that was how she knew she had been dismissed. The issues in dispute.
Who initiated the termination of employment? The evidence of Mrs Howard Mrs Howard's evidence confirmed Mr Schofield's report, in terms of hours worked, and other matters of fact. She said that her hours of work had averaged 40 per week until 1998 when the hours were reduced to less than full-time hours as the result of her pregnancy. In relation to the two telephone conversations of 23 and 24 February 1999, Mrs Howard testified that she understood the purpose of Mr Pattullo's call on 23 February to be to establish what was to happen when she returned from maternity leave in April. She said to Mr Pattullo:
Mrs Howard said that she told Mr Pattullo that:
Mrs Howard testified that her baby was born with a clefted face and her breast feeding times were greatly lengthened by her deformity, and that at the time of Mr Pattullo's telephone call the baby was feeding at least eight to ten times a day. Mrs Howard said that she had taken her baby into the clinic and Mr Pattullo was aware of her problem. She told Mr Pattullo that she would be interested in part-time work one or two or more mornings a week. Whilst she could not return to full-time work she was seeking lesser hours.2 Mr Pattullo had asked her, she said, whether she would be interested in working Monday, Wednesday and Friday from 9 am until 12.00:
Mrs Howard said that she was of the impression that she was going to resume work on a part time basis in June, and that this impression continued until the events of 30 April 1999. Mrs Howard testified that she had first formed the view that her employment had been terminated on 30 April 1999, when she visited the surgery. During that visit her registration certificate was returned to her (by Mr Pattullo), and she was told that she was now casual and that it was her responsibility to pay for the renewal of the certificate from then on. She said that an advertisement in the Australian Veterinary Journal for a veterinary surgeon's position at the Eastern Shore Veterinary Hospital4 was brought to her attention. As a result of that, she rang Mr Pattullo and expressed her distress about the events of 30 April. She said that she asked Mr Pattullo whether she should formally resign, whether she was still working there, and what did it mean to have been told she was casual.
In response to a question from Mr Fishwick as to what Mr Pattullo had said, Mrs Howard replied:
Following that conversation, Mrs Howard sent a letter to Mr Pattullo, she said. This letter was dated 6 May, a copy of which was in the Workplace Standards report7. During May of 1999 Mrs Howard said that she had met some clients who had told her that when they had rung up for appointments at the practice they had been told that she no longer worked there. That had happened on several occasions. She said that the view she had formed from this was that:
Under cross examination by Mr Pattullo, Mrs Howard said that in May 1999 she sent a letter indicating possible shift times that she could work. In that letter she offered up to three days a week plus a couple of weekends every eight weeks. Mrs Howard said that was more than she had indicated in February because her "baby situation changed".9 The telephone conversation of 24 February, she said, was to confirm with Mr Pattullo that she was changing her return to work date from April to June. Mrs Howard said that the June date had been picked because it was the end of the (twelve month) maternity leave period. Mr Pattullo referred Mrs Howard to page 4 of her statement to Workplace Standards, in which she said that she made two telephone calls to the surgery in March, during one of which she asked what her pay rate would be and Mr Pattullo said to her "work on it being what it was before". Mr Pattullo said that he could not recall either of those 'phone calls. Mrs Howard responded by saying that one of the calls was about a patient and that the other had been to establish what her pay rate was to be in order to calculate her finances in relation to child care costs. Mrs Howard said that Mr Pattullo had made this same statement to her twice, once during the February 23 conversation and again in March. Mr Pattullo did not challenge Mrs Howard's statement.10 During re-examination Mrs Howard said that she had received no response to her letter to Mr Pattullo dated 6 May in which she outlined possible shift times that she could work. The submissions of Mr Fishwick Mr Fishwick, for the employee, said that whilst the actual date of the conclusion of Mrs Howard's employment was a matter for argument and evidence, there was no doubt that the employment relationship had ceased. The last date that she had received wages was 19 June 1998, prior to commencing maternity leave. This was a situation where there was no letter of termination nor letter of resignation. In determining what was the trigger for termination it is necessary to consider the behaviour of the parties, he said. The primary submission of Mr Fishwick was that the employment had been terminated by the employer, giving Mrs Howard an entitlement to pro rata long service leave under section 8[3][d] of the Act. In the alternative, he submitted, Mrs Howard, for reasons of domestic necessity, terminated her employment, giving rise to an entitlement under section 8[3][c]. Mrs Howard's domestic circumstances clearly fell within the ground of domestic necessity. Mr Fishwick said that either way, an entitlement to pro rata long service leave applied, it was simply a matter of evidence for the Commission to decide who initiated the termination of employment. Scenario A: Termination at the initiative of the employer In Mr Fishwick's submission, there were four grounds referred to in Mr Schofield's report which showed that the termination was at the initiative of the employer:11
Mr Fishwick said that when those four events were viewed together there were strong grounds for the employment having been terminated by the employer. There was no suggestion, Mr Fishwick said, in the Workplace Standards Report, or in documents provided by Mr Pattullo, that the employment had been terminated on the grounds of serious and wilful misconduct. Scenario B: Termination at the initiative of the employee Mr Fishwick's alternative scenario was that the termination was at the initiative of the employee on the basis of domestic necessity. He referred to the two telephone conversations which took place on 23 and 24 February 1999, where Mrs Howard advised Mr Pattullo that her baby's demands were such that she could no longer continue full time employment. The reasons being that she was breast feeding and caring for a baby with a facial deformity, and that her husband had commenced shift work.12 The behaviour of Mrs Howard in those two telephone calls showed a clear indication that she did not want to resume employment on the previous basis; that she was seeking an alternative but substantially different basis of employment, given the reduction in hours.13 It is clearly open to the Commission, he said, to find that there was a defacto resignation. There was ample evidence that the employer was well aware of the reasons for Mrs Howard's inability to return to full time duties. It could be argued that the statements made by Mrs Howard on 23 and 24 February to the effect that she did not want to return to full time employment, clearly indicating the reasons why, amounted to a resignation with eight weeks' notice.14 Mr Fishwick said that it was clear from the Workplace Standards report and from Mrs Howard's evidence, that the sole reason for seeking that fundamental change in employment fell within the ambit of domestic necessity pursuant to section 8[3][c] of the Act. The nature of the work at the veterinary practice was such that employees were rostered to work outside of normal hours - early morning and often evening work and they were rostered to work on-call involving seven days per week. There was a lack of family support to assist Mrs Howard. Mr Fishwick said that those circumstances significantly exceeded the criteria in settled cases regarding domestic necessity. He referred the Commission to T5156 of 1994 Withers v Industrial Transmission and Engineering Supplies Pty Ltd, where Watling C said at page 16:
The second case was T6215 of 1996 Brazendale v P & P Holdings Pty Ltd trading as Elphin Continental Cakes. That case concerned the resignation of a pregnant woman, and the Commission found that the real and motivating reason for her resignation was:
A third relevant case was T5390 of 1995 Thomas v The Examiner Newspaper, in which Watling C, as he then was, said there were three essential criteria that the applicant must demonstrate: the reason for resigning was a genuinely held belief not merely a colourful rationalisation designed to elicit gain; the belief was the sole and motivating reason for terminating employment; and a reasonable person in the applicant's position would feel compelled to end his or her employment. The changes to Mrs Howard's circumstances, according to Mr Fishwick, in terms of her partner's shift work and caring for a baby with a facial deformity, together with the full-time demands of the job and a lack of family support, fairly and squarely meets the test of domestic necessity as outlined in the cases cited. The Case for Mr Pattullo Termination at the initiative of the employee Mr Pattullo submitted that the four grounds relied upon by Mr Fishwick for establishing that the employment was terminated at the initiative of the employer could apply equally validly had Mrs Howard terminated her employment.15 Firstly, had Mrs Howard terminated her employment he would still have needed to advertise for another veterinary surgeon. Secondly, when Mrs Howard asked him whether she should formally resign, the reason that he had said it was not necessary was because Mrs Howard had already resigned and it was not necessary for her to do so twice. Thirdly, the fact that Mrs Howard had offered altered hours of work in May did not seem relevant to Mr Pattullo, he said, because she had already terminated her employment in February. The advertisement he had placed was not restrictive and there was nothing preventing Mrs Howard from applying for the job. Had she applied for that job there would have been the opportunity for her to re-negotiate a new work contract separate to the one Mrs Howard had resigned from on 24 February 1999. Fourthly, the fact that people had told Mrs Howard that they were unable to make an appointment with her at the surgery is consistent with the termination in February, so was a "non-issue", Mr Pattullo said. On 23 February Mr Pattullo rang Mrs Howard, he said. She was due to return to work in April, and because he was very keen to get her back to work, he asked if she was interested in working a few mornings a week before returning to work in April.16 Mr Pattullo said that on 24 February, when Mrs Howard said that she was not returning except under her conditions, her statement was a very clear and unambiguous one. He was under the distinct impression that that was the end of the work relationship.17 "Absolutely. That was it."18 He did not offer Mrs Howard part-time employment, Mr Pattullo said.19 He submitted that Mrs Howard had got the dates of 23 and 24 February muddled up. In her letter of May in the first paragraph Mrs Howard said: "On 23rd and 24th February, I advised you I was unable to return to full time employment in my present capacity..."20 Mrs Howard did not differentiate between the two dates, Mr Pattullo said, and that was critical to his argument because it was what happened on the 24th February which was the overriding determining factor. The Commission asked Mr Pattullo to address another section of the letter, which said: "On 4th May, you asked me to supply you with possible shift times. I can offer up to 3 days a week and a couple of weekends every 8 weeks approximately." Mr Pattullo responded by saying that as an employer with a business which fluctuated it was relevant to know if there are people around who can be called in on a casual basis and at short notice, and he was interested in knowing how much work Mrs Howard would be available to do. Mr Pattullo said that there was no need for him to respond to Mrs Howard's letter because he was under no obligation to respond.21 In answer to a question from the Commission, Mr Pattullo said that he did not recall a telephone call in March, during which Mrs Howard had allegedly asked what her pay rate would be. He said that he remembered her asking that in February, and that whilst it is not inconceivable that the March conversation took place, he would think it a very unusual situation for him not have remembered it. Domestic or other pressing necessity Mr Pattullo said that at no time did Mrs Howard advise him of any domestic or other pressing necessity. He pointed to his correspondence to Workplace Standards in which he said that whilst he readily conceded that the nurture of an infant is a pressing necessity, but he said, according to his reading of the Act, it had of be of such a nature as to justify the termination of the employment.22 Mr Pattullo's submission was that Mrs Howard resigned on 24 February, but that her maternity leave did not terminate until 20 June, so there was a period of four months of maternity leave still to go, which would have given her time to get over the more demanding stages of her infant's first year of life, during which time she could ascertain whether or not the domestic duties became easier. Therefore, the circumstances were not of such a nature as to justify the termination of employment in February. Mrs Howard's situation, as Mr Pattullo saw it, changed significantly in the period between 24 February through until May, and even later. On 24 February she could only foresee working for a morning or two a week. On 30 April she seemed to be looking for more hours of work. On 4 May during a telephone conversation she said to Mr Pattullo that she was looking to go back to work, but she did not specify whether part-time or full-time. According to Mr Pattullo, she said: "I'm looking to go back to work and if no indication from you I'll resign and explore other options".23 Then, in the letter of 6 May Mrs Howard offered up to three days a week and a couple of weekends every eight weeks approximately, Mr Pattullo said. By June, Mrs Howard was ready to return to work on the basis of very similar hours to those she had worked prior to going on maternity leave. These changes established the fact that the domestic or pressing necessity was not of such a nature as to justify the termination of employment in February, Mr Pattullo claimed. It did not seem to him that resigning in February, effective in June, was necessary. Mr Pattullo referred to the case of Computer Sciences of Australia Pty Ltd v Leslie (1983 AILR AT 55) and tendered an extract from the Long Service Leave Guide24 He referred to the criteria set out in that decision: 1. Was the reason claimed for termination circumstances provided in the Act? Mr Pattullo said the answer to that was "Yes". 2. Was the reason genuinely held by the employee? Mr Pattullo said that employee had other reasons, in addition to her domestic reasons, and those were that she thought that she was not required because the practice had taken another veterinary surgeon on. 3. Was the reason the real or motivating reason? Mr Pattullo said maybe the answer to that was yes, or maybe the answer was no. 4. Was the reason such that a reasonable person in the circumstances in which the employee was placed might have felt compelled to terminate his or her employment? This, Mr Pattullo said, was a matter of opinion. and, what would the consequences have been if the employee did not take that course of action? Mr Pattullo said that this was "pivotal" to his case, because it was not necessary for the employee to take the action she did at the time. Things may have gone badly with her infant, however, fortunately, they did not. He then referred to the Brazendale case25, where the employer argued that "There was an onus on the employee to demonstrate - (a) why it was necessary to terminate his employment, i.e. that some real and genuine problem existed at the time of resignation and that an undesirable consequence would have occurred - " Mr Pattullo said that (in the instant case) there was no undesirable consequence. He referred to President Koerbin's comments:
This was the situation in this case, according to Mr Pattullo Mrs Howard's infant's breast feeding was an ephemeral or passing problem, which in the normal course of time was going to improve. FINDINGS Who terminated the employment relationship? Having considered all of the circumstances, the evidence of the parties, and the information and documents contained in the Workplace Standards report, I find that Mrs Howard's employment was terminated at the initiative of the employer. I base this finding on the following reasons: On 23 and 24 February 1999 there were two telephone calls between Mr Pattullo and Mrs Howard. Whilst there are some differences between the parties as to the sequence of discussions during these calls, the agreed facts are that during these conversations Mrs Howard said to Mr Pattullo that she was unable to return to full time work, that she was interested in part time work. I consider that, in so doing, Mrs Howard was doing no more than attempting, by agreement, to change her contract of employment from full-time employment to part time employment, as she had apparently done before in the time leading up to her period of maternity leave. Mrs Howard also said, during one or both of the telephone conversations, that she wished to extend her period of maternity leave, so that she would return on 19 or 20 June 1999, instead of 19 April, as previously arranged. There is nothing to indicate that this request was refused, therefore Mrs Howard had another four months before she was due to return from maternity leave. The evidence of both parties is that, during the conversation of 23 February, there was an offer of part time employment made to Mrs Howard, on the basis of three mornings a week. Mr Pattullo claims that offer related only to the period between February and April, whilst Mrs Howard was still on maternity leave. This claim does not appear plausible, given the subject matter of the conversations, which were about extending Mrs Howard's maternity leave and also given Mrs Howard's domestic situation. I find it more likely than not that the offer was as Mrs Howard understood it, that is, it was for when she returned from maternity leave. The situation changed on 24 February, when Mrs Howard said, during the telephone conversation of that date, that she would be unable to return to full-time work except for a morning or two a week and wouldn't be able to work full time for a year or two. Mr Pattullo claimed that it was at this point that Mrs Howard terminated her employment. Mr Pattullo was clearly very unhappy with Mrs Howard's comments. He said, in his correspondence to Workplace Standards dated 13 November 1999 that her statement in relation to a "morning or two a week" was "irrelevant and improper" and "amazing and presumptuous". He said that, following this statement, "the whole situation changed forever and any offers made on 23rd February were completely and utterly null and void". He later claimed that Mrs Howard's comments on that date amounted to a resignation on her part, or, alternatively, that she abandoned her employment on or after that date. I have concluded, on the basis of Mr Pattullo's statement to Workplace Standards, and the submissions of Mr Pattullo,27 that it was at this point that Mr Pattullo decided that the employment relationship was at an end.28 Despite having decided to treat Mrs Howard's statements as terminating the employment relationship, the evidence is that Mr Pattullo did not tell her so. His only response to her statement was to say "that's a turnaround", and there was no further discussion around the issue. Mr Pattullo said nothing to indicate that he had decided that her comments had terminated the employment relationship, nor did he say anything to indicate that her request to return to work on a part time basis would not be accommodated.29 Mrs Howard continued to believe that she would be returning to work in June 1999. All of the arguments advanced by Mr Pattullo to support his claim (when arguing that there was no entitlement to pro rata long service leave on the basis of domestic necessity) that there was no need for Mrs Howard to resign on 24 February, including the argument that she still had four month's of maternity leave, support the proposition that she did not resign on that date. The evidence of further discussions and correspondence in relation to rates of pay and hours of work also support the conclusion that Mrs Howard did not resign on that date, and that she was unaware that Mr Pattullo had chosen to treat the discussions on 24 February as the end of the employment relationship. It is clear from the evidence that, for whatever reason, Mr Pattullo continued with a charade of negotiations around Mrs Howard's return to work. Indeed, he told Mrs Howard, on 4 May, that there was no need for her to resign. According to Mr Pattullo, Mrs Howard said "if (there is) no indication from you I'll resign and explore other options".30 If, as he claims, he had taken her comments of 24 February (that she would be unable to work more than a few mornings a week for a year or two) as signifying a resignation on her part, it is difficult to understand why did he not say that to her at that stage, or indeed, at any stage. Mrs Howard's evidence was that in March of 1999 Mr Pattullo informed her, in response to a question, that she would be paid the same rate as before when she returned from maternity leave. Mr Pattullo claimed that he did not recall this conversation; he said that "it is not inconceivable" (that it took place), but that it would be "an unusual situation"31 for him not to have remembered. On balance, having considered all of the circumstances, I accept Mrs Howard's evidence in relation to this incident. I do so because Mrs Howard's version is consistent with the ongoing negotiations she was engaged in concerning her intended return to work. On 4 May 1999 Mr Pattullo asked Mrs Howard to provide shift times when she would be available to work. On 6 May she wrote to Mr Pattullo offering suggested shift times. Mr Pattullo did not respond to that letter, because, he said, he "was under no obligation to respond".32 His failure to respond to Mrs Howard's letter supports the view that Mr Pattullo had no intention of continuing to employ Mrs Howard. From Mrs Howard's perspective, the negotiations could have continued until June, the end of her period of maternity leave. The evidence is that she continued to offer more hours as time went on. This is inconsistent with Mr Pattullo's claim that Mrs Howard had terminated the employment relationship on 24 February. It is difficult to establish the exact date of the termination of employment. It is clear that Mr Pattullo decided that the employment relationship was at an end on 24 February 1999, although he did not say anything to Mrs Howard to indicate that this was the case. I do not believe that a contract can be terminated without informing the other party, either in words or by actions, that it has been terminated. No such indication was given by either party until 30 April 1999 when Mr Pattullo informed Mrs Howard that she was now a "casual" employee. The unilateral change of an employee's status, by an employer, from permanent to casual is clearly a dismissal. I therefore find that Mrs Howard's contract of employment came to an end on 30 April 1999, some two months before she was due to return from maternity leave, when Mr Pattullo informed her that she was now a casual employee, and that the employment was terminated at the initiative of the employer. I accept Mr Fishwick's submission that there was no question of serious and wilful misconduct on Mrs Howard's part. I find that the dismissal falls under section 8(3)[d] of the Long Service Leave Act 1976:
In view of this finding it is not necessary for me to address the question of domestic necessity. However, given that both parties made extensive submissions on this issue, I indicate that, had I made a finding that Mrs Howard had resigned, I consider that her domestic circumstances were such as to establish an entitlement to pro rata long service leave pursuant to section 8[3][c] of the Act, ie domestic necessity of such a nature as to justify the termination of the employment. These circumstances included:
On what basis should the entitlement be calculated? Projected roster or average hours? Mr Schofield, of Workplace Standards, in his report, calculated Mrs Howard's entitlement as being $8054.6933 on the basis of a commencement date of 1 July 1985, at an average rate of pay during the last twelve months of her employment of $721.10 per week, pursuant to section 11(6] of the Act, which states:
Mr Millhouse, addressing this question, referred the Commission to two attachments to the report34, one being handwritten records of 1985 and another bring a typed record of weekly hours worked by Mrs Howard from 24 June 1997 until 23 June 1998. He said that, according to those records, the hours during the 1985 period were irregular. The records for 1997/1998 showed that there was no consistency or regularity in the hours worked each week. Whilst there was some sort of shift or roster system in place, Mr Millhouse said, there was not the regularity in hours which would normally be the case for someone on a roster or shift. For that reason, Mr Schofield had concluded that the appropriate section of the Act was 11(6) which deals with an employee who works irregular hours. Mr Fishwick claimed that the more appropriate section of the Act, in this case, is section 11(2[b]:
Mr Fishwick based his claim on the fact that there was a projected roster drawn up between one and two months in advance.35 He said that Mrs Howard's rate of pay was $22.65 per hour, which amounted to $906.00 per week when applying the average rostered hours per week of 40 hours, based upon the hours Mrs Howard had worked prior to the reduction of hours as a result of her pregnancy in 1998. Using this method of calculation, then Mrs Howard would have an entitlement of $10,120.02, Mr Fishwick said. Mr Fishwick said that the application of section 11(6) would have an unjust result due to the fact that the during the last twelve months of Mrs Howard's employment she worked a lesser number of hours than she had in previous years. Mr Pattullo said that the hours that Mrs Howard worked were very variable, depending upon the workload required.36 Date of commencement Mr Schofield's report based the calculation of Mrs Howard's entitlement upon a commencement date of 1 July 1985. This date was selected because Mrs Howard had no clear recollection of the date of commencement. A question was asked by the Commission during the hearing as to the existence of a Group Certificate which would clarify the actual commencement date. In correspondence from Mr Pattullo, subsequent to the hearing, the Commission was advised that Mrs Howard commenced employment on 21 May 1985, as shown on Group Certificate No. 1 560 147 699, issued on 26 June 1985. Length of service Mr Pattullo submitted that, whilst Mrs Howard did commence employment in May of 1985, the length of service for the purpose of calculating Mrs Howard's length of service should only be from 11 November 1985, because there had been a seven week period during which time she was not in his employment. Mrs Howard's evidence was that she commenced work with Mr Pattullo, but had existing commitments elsewhere for a "few months"37 in the north and the north west, following which she worked for Mr Pattullo on a continuous basis. Mr Schofield, in his report, has deducted a period of 0.08 years from Mrs Howard's total service for October of 1985, presumably to take account of the period of absence whilst Mrs Howard worked elsewhere. FINDINGS I find that Mrs Howard was employed from 21 May 1985, and that the period of absence from her employment during that year falls within section 5(j) of the Act, which deems an employee's service to be continuous notwithstanding:
Whilst not expressly stated, the inference to be drawn from the evidence of Mr Pattullo and Mrs Howard, and the record of payment of wages,38 is that Mrs Howard's absence from employment was by leave of the employer. It is scarcely conceivable that, had Mrs Howard absented herself without approval after a few months of employment, she would have been taken back on again. The Act further says at section 5(2) that when calculating continuous employment interruptions or absences of the kinds referred to in 5(j) shall not be counted as part of the period of his employment. There was conflicting evidence given as to the length of the absence, with Mrs Howard referring to its duration as a "few months" and Mr Pattullo stating that it was for "seven weeks". Mr Schofield, however, has based his calculation on an absence of a period of four weeks during October of 1985. I find that Mrs Howard was absent for a period of seven weeks. I base that on the documentation provided in the Workplace Standards Report39 for 1985, which shows Mrs Howard as being in receipt of wages from Eastern Shore Veterinary Hospital for the periods week ending 17 September 1985 and week ending 12 November but not for the intervening weeks. I have determined that the relevant section of the Act to be applied when calculating Mrs Howard's entitlement is that used by Workplace Standards Authority, ie section 11[6] of the Act. Whilst acknowledging that the result for Mrs Howard is less favourable than the method advocated by Mr Fishwick, based on that fact that Mrs Howard's average hours were less in the last year of employment than during previous years, it is clear from the evidence that Mrs Howard did not have fixed weekly hours of work. I have reached this conclusion based on the evidence of the parties, and, in particular, on the documentation contained in the Workplace Standards report40, which clearly shows that for the periods for which records were provided - 1985, 1997 and 1998, Mrs Howard's hours differed considerably each week. I find the calculation provided by Workplace Standards to be the correct one, with an adjustment for a commencement date of 21 May 1985 and the 7 weeks absence in that same year. Therefore, the formula to be applied is: 11.1222 weeks x $721.10 = $8020.22. ORDER In accordance with the power vested in me under section 13 of the Long Service Leave Act 1976, in determining this dispute, I hereby order that Donald Andrew Pattullo trading as Eastern Shore Veterinary Hospital, pay to Leigh Ann Howard of 18 Beach Road, Lindisfarne, Tasmania 7015, the sum of Eight Thousand and Twenty Dollars and Twenty Two Cents. This amount is to be paid by 5.00 pm on Tuesday, 19 September 2000.
P C Shelley Appearances: Date and place of hearing: 1 Transcript 19/7/00 p.20. |