T9268
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mr Graeme John Woodhouse and Mount St Vincent Nursing Home and Therapy Centre Inc
Long service leave dispute - pro rata entitlement - domestic or other pressing necessity - application dismissed REASONS FOR DECISION This application was made by the Secretary, Department of Infrastructure, Energy and Resources, Workplaces Standards Tasmania, pursuant to s.13 of the Long Service Leave Act 1976 (the Act) for a hearing to settle a dispute concerning the non-payment of pro rata long service leave. On 8 November 2000 the matter was referred to me by the A/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 Graeme John Woodhouse (the employee) and Mount St Vincent Nursing Home and Therapy Centre Inc (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] of the Act; that is:
A hearing was set down for 10 am on Wednesday 29 November 2000 at the Magistrates Court, 31 King Edward Street Ulverstone. The date of the hearing was subsequently changed to Monday 18 December. On that date, Mr Shane Littler of the Health Services Union of Australia appeared for the employee; Mr Andrew Flood of the Tasmanian Chamber of Commerce and Industry appeared for the employer; and Gary Thomas, Graeme Williams and Lynne Brundle appeared for the Secretary, Department of Infrastructure, Energy and Resources. Background Mr Graeme John Woodhouse was employed by the Mount St Vincent Nursing Home and Therapy Centre (hereafter called the Mount St Vincent Nursing Home), Ulverstone, from 1 September 1990, firstly as a casual, and then, from 25 April 1991, as a permanent part time employee, in the capacity of Extended Care Assistant Level 3, under the terms of the Nursing Homes Award. At the time of the termination of his employment he worked 33 hours per week, on a roster of 21 days work over a span of five weeks, followed by five days off. Mr Woodhouse resigned his employment, by letter dated 15 September 1999, effective from 29 September 1999, after approximately nine years of continuous service. He cited as his reason "domestic and other pressing necessity",1 but he did not provide details of the domestic and other pressing necessity. A few days later Ms Kromkamp the Director/Nursing Manager of the Mount St Vincent Nursing Home, informed Mr Woodhouse that his request for payment of pro rata long service leave had been denied. On 12 October 1999 (nearly four weeks after he tendered his resignation), Mr Woodhouse wrote to Ms Kromkamp elaborating on his reasons for claiming pro rata long service leave. In the letter he said that his reasons for terminating his employment were that his son, Thomas, was suffering from emotional and behavioural problems and that he needed to spend regular time with his father. Mr Woodhouse said in his letter that his work commitments and work roster, together with the travelling, did not allow this to happen. He said that he believed the best thing to do was to leave work and concentrate on spending time with Thomas on a one-to-one basis, instead of having people care for him while he (Mr Woodhouse) was at work.2 On 13 October 1999 Mrs Kromkamp wrote to Mr Woodhouse, again rejecting the claim for pro rata long service leave. The amount claimed is $2,956.34. The Evidence The Workplace Standards Report A report prepared by Lynne Brundle, Inspector, Workplace Standards Tasmania, as amended, was submitted to the Commission.3 The parties agreed that the report accurately reflected the statements made by Mr Woodhouse and Ms Kromkamp to Workplace Standards Tasmania. The report said inter alia that: In about January 1998 Mr Woodhouse's son Thomas resided with Mr Woodhouse and his then partner, Marilyn Miller. Thomas was then seven years old. In November 1998 Mr Woodhouse and Ms Miller separated and Thomas and his father moved from Ulverstone to Wivenhoe. At approximately the beginning of 1999 Thomas went to live with his mother in Burnie. Thomas had developed behavioural problems and was receiving counselling. At some stage a suggestion was made by Thomas' psychologist that he should spend more time with his father. Thomas stayed with his father for two or three nights per week. On 1 January 2000 Mr Woodhouse became Thomas' full time carer, and received a supporting parent's benefit. At the date of hearing Mr Woodhouse resided at Port Sorell with his current partner and worked at the Spencer Clinic, North West Regional Hospital, Burnie. The evidence of Mr Woodhouse Mr Woodhouse testified that his reason for tendering his resignation was "solely because of the welfare and ongoing care of my son".4 Mr Woodhouse said that, had he not resigned the effect on the relationship with his son would have been "a total breakdown".5 Management was aware, he said, that he was seeking casual work elsewhere in order to supplement his income and that he had previously asked his employer for details of his accumulated entitlements. During cross-examination Mr Woodhouse said that the suggestion that Thomas spend more time with him was made when Thomas started seeing the psychologist, but that he could not recall the precise date. He said that it was:
Later, he said that:
In answer to a question as to whether he had ever provided a report from Thomas' psychologist to his employer, Mr Woodhouse said:
He said that he would have provided evidence of that recommendation being made (that Thomas spend more time with his father) to the Commission had he been asked for it and that he had provided the phone number. He did not specify to whom he had provided the number. Mr Woodhouse said the Workplace Standards Officer, Miss Brundle, had asked for evidence from the psychologist, but he felt that she was not at liberty to read the private confidential files relating to his son. Miss Kromkamp had never rung him to ask to view the files or to ask him to produce any evidence of Thomas having been to see the psychologist, he said. Mr Woodhouse said that he thought that Miss Brundle had asked him if she could speak to the psychologist but that he did not think that was necessary. Miss Brundle had also asked if she could interview Thomas' mother and, again, he did not think it necessary, he felt that Ms Kromkamp could have done it on her own. He agreed that he had discussions prior to his resignation in relation to the termination of his employment and that he may have mentioned the strain of travelling from Wivenhoe as a contribution, but that was not the sole reason for leaving. He said that either on the day of his resignation or later he had given Ms Kromkamp a number of reasons why he was leaving, including the travelling. His evidence was that travelling to work, going to work "and everything else" were factors which restricted him from spending time with his son, but travelling was "only a very little factor made up of the reason I left".9 Mr Woodhouse said that he worked two days per fortnight "or something like that"10 at the Spencer Clinic in Burnie, on his days off from Mount St Vincent, and agreed that he had commenced the work at the Spencer Clinic after the psychologist had recommended that he spend more time with his son. He said that this work commenced in approximately August (1999). Mr Flood, for the employer, introduced a roster into the evidence11 which, Mr Woodhouse agreed, was the roster that was in place toward the end of his employment with Mount St Vincent.12 That roster showed that Mr Woodhouse had 14 days off over the course of a five week roster. Mr Flood asked Mr Woodhouse whether that was sufficient time to satisfy the psychologist's suggestion that he spend "two or three days a week with Thomas", to which Mr Woodhouse responded:
Mr Flood suggested that the psychologist had said that Mr Woodhouse only needed to spend two or three days a week (with Thomas). Mr Woodhouse replied:
and:
Mr Woodhouse agreed that some of his rostered shifts, namely the 7.00 to 3.00 shifts covered hours when Thomas was at school. He also agreed that he had not approached his employer to see whether his shifts could be changed to accommodate his belief that he needed to spend more time with Thomas. The reason he had not done this, he said, was that he "felt that doing that was just a short term fix it ..."16 The reason that he had not mentioned Thomas' behavioural problems in his first letter of resignation was that he had been told by Shane Littler (of the Health Services Union) that he did not need to put any more in his letter than he had done, he said. He agreed that he had previously asked Ms Kromkamp about long service leave entitlements were he to leave to take up a full time position and that he had been told that he would not receive such a payment, because she felt that he was not entitled to one. His new position at the Burnie Hospital involved him working an average of 25 to 30 hours a week, based on eight hour shifts, he said. Thomas was now living with him twelve days out of each fortnight, and he (Mr Woodhouse) was travelling from Port Sorell to Burnie each day to work, a distance of 75 kilometres one way, (according to Mr Flood). The travelling takes him 45 minutes. The travelling when he had worked at Mount St Vincent had taken him approximately 20 minutes. Mr Woodhouse said that his situation had now changed; he was engaged to be married and his fiancee was there for Thomas when he was at work. Mr Woodhouse said that Thomas' behaviour had now improved and that he was very settled, which allowed him to go to work. The evidence of Ms Kromkamp Ms Kromkamp testified that she was the Director/Nursing Manager of the Mount St Vincent Nursing Home, and had been employed in that position for six years. Ms Kromkamp said that Mr Woodhouse had made no secret of the fact that he wished to seek employment elsewhere, mainly in Burnie, because travelling to Ulverstone was a problem. The first that she was aware of the claim that Mr Woodhouse needed to spend more time with his son was when she received a letter a month after he had terminated his employment. She had not been approached by Mr Woodhouse to alter the hours of his roster, but, she said, had he done so:
Apart from the letter (of 12 October 1999) Ms Kromkamp said that she had no further correspondence or proof in relation to Mr Woodhouse's claim (that he needed to spend more time with Thomas). In response to a question from Mr Littler as to whether she had followed up Mr Woodhouse's invitation to management to contact people associated with the claim (Thomas' mother and his psychologist], Ms Kromkamp said:
The evidence of Ms Brundle Ms Brundle testified that she had asked Mr Woodhouse if she could go and speak to the counsellor and that he had said that he would prefer that she did not. She said that:
She said that at her initial interview with Mr Woodhouse he had written two people's names on a piece of paper with their phone numbers. One name was that of Leah Willoughby, Thomas' mother, and the other Marilyn Miller, who had been Mr Woodhouse's partner. He had told her that Marilyn Miller would be able to tell her about the changes in Thomas and that Leah Willoughby was Thomas' mother and knew what the problems were. Later, Mr Woodhouse had said to her that he no longer wanted her to talk to Ms Willoughby. The reason, he said, was that "she wouldn't say nice things about him."20 The submissions of Mr Littler for the employee Mr Littler, on behalf of the employee, submitted that the reason Mr Woodhouse had left his employment was because of family reasons, not just to secure employment elsewhere within the Burnie region, as had been suggested. He said that at the time Mr Woodhouse tendered his resignation he had full custody of his son, Thomas. The custody followed a court order in March 1998, but due to Mr Woodhouse's work commitments he had shared arrangements with Thomas' mother, but that care arrangement was not in Thomas' best interests. At the time of Mr Woodhouse's resignation he had work of a casual nature at the Burnie Hospital, with no guarantee of permanent work. This was not his preferred option, but was something that he had to do in the best interests of Thomas. Mr Woodhouse invited management to contact relevant parties who would have been able to provide information supporting the reasons he gave for his resignation. Mr Littler said that Mr Woodhouse had verbally advised his employer of the reasons for his resignation two days after his initial letter of resignation At the time of the interviews between Workplace Standards and the employer (11 November 1999), the employer was fully aware of the reasons for the resignation and had been given the opportunity to either ring Thomas' mother or his psychologist. Mr Woodhouse had felt that he had no alternative at the time of tendering his resignation. He had given his employer the opportunity to seek information from the relevant parties, but they did not do so. There was a necessity regarding his son for Mr Woodhouse to leave at that particular time. It had not been raised previously with the employer because it was of a personal nature, but when he tendered his resignation he gave the employer the opportunity to seek any information from the relevant parties, Mr Littler said.21 The submissions of Mr Flood for the employer Mr Flood submitted that there is no obligation upon the employer to investigate the circumstances of Mr Woodhouse's claim, the onus is on the employee to demonstrate that he terminated his employment for reasons of domestic or other pressing necessity. He said that the President of the Commission, in T639 of 1987 Goss v Savage, had found that the onus was squarely upon the employee to prove his case. Mr Woodhouse must also demonstrate, he said, that not only had he terminated his employment on account of domestic or other pressing necessity but also that that necessity was of such a nature as to justify the termination. Mr Flood referred to the Computer Sciences case22 which, he said, applied four tests to determine whether a long service claim was justified:
Mr Flood said that one of the reasons Mr Woodhouse gave for termination was the expense of travelling to and from Wivenhoe. Subsequently, Mr Woodhouse claimed that he had to leave the employment in order to spend more time with his son. Each of those reasons could be reasons which fall within section 8(3) of the Act, but there has been no evidence or insufficient evidence to prove that those were the reasons for termination of the employment, he said. In Mr Flood's submission, Mr Woodhouse had chosen not to provide evidence which was easily available to him, that is, the psychologist's evidence. As Mr Woodhouse had chosen not to provide that evidence, the Commission would be entitled to assume that that was not the reason for the termination of employment. In relation to whether the reason given is the real reason, Mr Flood said that the reasons Mr Woodhouse had given in his discussions with his employer were that at some stage he wished to end the employment because of the travelling. During those discussions he had not indicated that his reasons for termination were to attend to the perceived needs of his son. In his evidence he had said that the time spent travelling was time away from caring with his son. The amount of time it took Mr Woodhouse to get to work was only 15 minutes. In Mr Flood's opinion that was not an excessive amount of time. Mr Flood said that the onus was on Mr Woodhouse to demonstrate what his real and motivating reason was. If it was to enable him to send more time with his son, then, presumably, he would have advised Yvonne Kromkamp of the reason. Mr Flood referred to a previous decision of the President of the Commission, T 1651 James Hardie Building Products and Pinner in which the President stated that an employee should make his employer aware of his domestic difficulties in order for the employer to make other arrangements for him. No such approach was made by Mr Woodhouse. The only reason given by the employee to the employer was that the travelling was not acceptable. This reason conflicted with the subsequent activities of Mr Woodhouse, according to Mr Flood, which included moving to Port Sorell, seventy-five kilometres from his current place of employment. In Mr Flood's submission the time that Mr Woodhouse had spent travelling (whilst at Mt St Vincent Nursing Home) was not lengthy, even by Tasmanian standards, and was not a factor in his leaving work for a reason set out under section 8(3) of the Act. The final test to be considered, Mr Flood said, is what a reasonable man would do in Mr Woodhouse's circumstances. As authority, Mr Flood referred to a decision of the President of the Commission, T294 of 1985 - Cadbury Schweppes and Cunningham. In that decision, at page 18, the President stated that it was not sufficient for an employee merely to show that the perceived circumstances were such that it was thought to be good move to leave, it must have been reasonably necessary in all of the circumstances based on sound facts. Mr Woodhouse had not demonstrated to the Commission that his decision to terminate his employment was necessary, nor could he demonstrate that his decision to do so was based on sound facts, Mr Flood said. The investigating officer, Ms Brundle, had said that Mr Woodhouse had specifically directed her not to speak to Thomas' mother or to his psychologist, and neither of those people had given evidence to the Commission, nor was any evidence presented on their behalf. All that the Commission had been provided with was Mr Woodhouse's verbal evidence. Mr Flood submitted that, given that there had been ample opportunity for Mr Woodhouse to allow Workplace Standards Tasmania to examine the psychologist or to have the psychologist appear in person to give evidence, the Commission should give very little weight to Mr Woodhouse's verbal evidence. Mr Woodhouse had failed to demonstrate that the circumstances he claims caused him to terminate his employment existed at all, Mr Flood said. Even if they did exist, they were not of such a nature as to justify the termination of the employment. FINDINGS A number of matters were raised which I do not consider to be relevant to the question to be decided, which is, at the time of the resignation, did Mr Woodhouse have a genuine reason of such a nature as to justify the termination of the employment? These matters included:
Accordingly, I have not taken those matters into consideration when reaching my decision. Chronology It is difficult to establish the precise chronology of events, partly due to Mr Woodhouse's failure to provide direct answers to questions relating to the exact dates of certain events, for example, when the psychologist suggested that Thomas spend more time with his father. From the evidence before me I have concluded that the likely sequence of events is as follows: In early 1999, following the separation of Ms Miller and Mr Woodhouse, Mr Woodhouse moved from Ulverstone to Wivenhoe and Thomas then resided with his mother. From the outset of this arrangement it appears that Thomas spent two to three nights a week with his father. Not long after Thomas went to live with his mother he commenced counselling sessions with a psychologist from the Child and Adolescent Centre in Burnie. Early on during the counselling sessions it was suggested that Thomas spend more time with his father. It is clear from the evidence that the two or three nights a week that Thomas was spending with his father commenced months prior to Mr Woodhouse tendering his resignation from his employment at the Mount St Vincent Nursing Home. Not long before his resignation, Mr Woodhouse obtained additional casual work on days when he was not working at the Mount St Vincent Home. Mr Woodhouse presented his letter of resignation on 15 September1999 and ceased employment on 29 September 1999. He did not cite Thomas' situation as a reason for his resignation. Four weeks later, after his request for payment of pro rata long service leave had been refused, Mr Woodhouse provided details of Thomas' problems to Ms Kromkamp, claiming that the work commitments, roster and travel did not allow him to be there for Thomas, and that he needed to be with Thomas on a one-to-one basis. Mr Woodhouse provided the telephone number of Thomas' mother for verification, and also provided the name of Thomas' counsellor. When considering whether Mr Woodhouse's situation, at the time of the termination was of such a nature as to justify the termination of his employment, I have taken into account:
Having considered the above, on balance, I have concluded that Mr Woodhouse has failed to establish his claim. It may well be the case that Mr Woodhouse's son has the problems as described, and that a psychologist did recommend that father and son spend regular time together. However, in my view, Mr Woodhouse has failed to sufficiently establish a link between his decision to terminate his employment at that time and his domestic circumstances. I find that there is insufficient evidence to establish that Mr Woodhouse's domestic circumstances at the time of his resignation were of such pressing necessity as to justify the termination of his employment. I have also considered Mr Flood's arguments in relation to the fact that Mr Woodhouse did not make his employer aware, prior to his resignation, of his domestic problems, and that the employer may have been able to make other arrangements, had he done so. I do not accept the argument that an employee should make an employer aware of his/her domestic circumstances prior to the date of resignation. There is no requirement under the Act for an employee to do so. I consider it reasonable, however, that an employee, intending to make a claim under the relevant section of the Act, would provide his/her employer with details of the reasons at the time of the resignation. Mr Woodhouse did, after the date of termination, make the name of his son's psychologist available to his employer, stating that there were records available and stating where those records were. He also provided the telephone number of his ex-wife, inviting his employer to contact her for verification of the situation as described by him. It may well be the case that the onus is on the employee to prove his case, as submitted by Mr Flood. I consider, however, that it would not have been unreasonable for the employer to have taken up the invitation extended by Mr Woodhouse. This they chose not to do. Having failed to take his employer into his confidence prior to or at the time of his resignation, it would have assisted Mr Woodhouse's case were he to have made access to information available to the investigating officer or to have presented supporting evidence to the Commission in relation to his stated reasons for termination. This he chose not to do. Even if Mr Woodhouse had satisfied the Commission that there was a need for him to spend a greater amount of time with his son than his work arrangements allowed him, I have taken into consideration the fact that Mr Woodhouse commenced additional casual work in August 1999, the month before he tendered his resignation and subsequent to the psychologist's recommendation that he spend more time with his son, upon which recommendation Mr Woodhouse so strongly relied in support of his claim. I consider that, in view of this circumstance, Mr Woodhouse has failed to demonstrate the necessity for the termination of his employment. In all of the circumstances of this case, I am not satisfied that the reasons given by Mr Woodhouse were the real and motivating reasons which led to his resignation from his position at the Mt St Vincent Nursing Home and Therapy Centre Inc. I find, therefore, that he has failed to establish a claim under section 8(3)(b) of the Long Service Leave Act 1976. The application is dismissed.
P C Shelley Appearances: Date and place of hearing: 1 T1 Attachment 6 |