T9639
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Lorraine Susan McDermott and John Robert Thomas Pty Ltd
Long service leave dispute - pro rata entitlement - deemed transmission of business - continuous employment - claim granted - order issued REASONS FOR DECISION (1) 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 [the Act] for a hearing to settle a dispute concerning the non-payment of pro rata long service leave. (2) The dispute is between Lorraine Susan McDermott and John Robert Thomas Pty Ltd [the employer]. (3) When the matter came on for hearing on 23 July 2001, Mr G Williams appeared for the Secretary, together with Mr G Thomas. The employer was not represented. The Commission staff had previously gone to considerable trouble to ensure that the employer had been properly served. An outline of these efforts were recorded on the transcript. As the Commission had not received any explanation for the employer's lack of representation I determined that Mr Williams should proceed with the application. (4) The following facts were not contested: 1. Mrs McDermott had been employed by the employer until her termination on 22 September 2000. 2. Mrs McDermott's classification was Front Office Employee Grade 3 under the Federal Hospitality, Hotels, Resorts and Accommodation Award 1998. This Award does not have provision for long service leave. The ordinary rate of pay at the time of termination was $522.50 per week. (5) The following statement from Mrs McDermott was tabled into evidence as part of the application:
(6) At the conclusion of Mr Williams' submissions the hearing was adjourned on the basis that the transcript would be forwarded to the employer who would be given the opportunity to respond in writing. This was effected under cover of letter dated 8 August 2001. No submission had been received by the nominated date of 27 August 2001. (7) In relation to transmission of business the following sections of the Act are relevant:
(8) I am satisfied that there have been a series of transmissions and that, within the meaning of the Act, employment has been continuous between 22 March 1990 and 22 September 2000. (9) Section 8[2][b] of the Act provides for a pro rata long service leave entitlement [subject to s.8[2][3]] where an employee has completed 7 years, but less than 15 years, continuous employment with the employer. (10) On the available evidence I am satisfied that Mrs McDermott was terminated for reasons other than serious and wilful misconduct [s.8[3][d]. I am therefore satisfied that a pro rata entitlement, consistent with the Department's calculation, exists. ORDER (11) Pursuant to Section 13[3] of the Long Service Leave Act 1976, I hereby Order that John Robert Thomas Pty Ltd trading as Rutherglen Holiday Village pay to Mrs Lorraine Susan McDermott, C/- Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, Henty House, 1 Civic Square, Launceston 7250 the sum of three thousand nine hundred and sixty four dollars and fifty six cents [$3964.56], such payment to be made not later than 21 days after the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: |