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Tasmanian Industrial Commission

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T9639

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.15 referral of long service leave dispute pursuant
to the Long Service Leave Act 1976

Lorraine Susan McDermott
(T9639 of 2001)

and

John Robert Thomas Pty Ltd
trading as Rutherglen Holiday Village

 

COMMISSIONER T J ABEY

HOBART, 28 August 2001

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:

      "I commenced with Alan Keith Pybus trading as Rutherglen Holiday Village 22/3/90. I was employed as waitress on a casual basis. I worked at least 16 hours per week throughout the first 12 months. After 12 months I was made part-time working 20 hours per week as a cleaner and a waitress. I was paid annual leave, sick leave and public holidays. This continued throughout this employer ownership of the business. In October 1994 Everworth Tas t/a Rutherglen Holiday Resort took over the business. I was made full-time front office receptionist. This continued until Lorraine Young t/a Golden Karinya Resort took over on 31/7/96. I was still doing the same duties. On 12/6/97 Everworth Tas trading as Rutherglen Holiday Village took over the business. My duties remained the same. On 10/7/98 a receiver/manager was appointed, Michael Cook, accountants firm KPMG took over the running of business. On 18/12/98 John Robert Thomas Pty Ltd took over the business. I was still doing the same duties, ie full-time receptionist. On 22/9/2000 John Robert Thomas Pty Ltd lease had run out and I was terminated. I was not employed by the new owners of the business. I have had no breaks in employment throughout my 10 years service with the one business."

      (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:

      "2(2) Where an employee is employed in or about any place in the business of an employer and the employment of the employee with that employer is terminated, and, not later than the expiration of a period of 2 months from the date on which that employment was so terminated, the employee becomes employed in or about that place in the business of some other employer, the business of the employer by whom his employment has been terminated, shall, for the purposes of this Act, be deemed to have been transmitted to the employer by whom he so becomes employed if the business in which he so becomes employed is of the same, or substantially the same, kind as the business in which he was employed in the employment that has terminated."

      "5[4] Where a business is, whether before or after the commencement of this Act, transmitted from an employer (in this subsection referred to as 'the transmittor') to another employer (in this subsection referred to as 'the transmittee') and a person who at the time of the transmission was an employee of the transmittor in that business becomes an employee of the transmittee -

      (a) the continuity of the employment of that employee shall be deemed not to have been broken by reason of the transmission; and

      (b) the period of employment of the employee with the transmittee shall be deemed to include the period of his employment, and any period deemed to be a period of his employment, with the transmittor."

      (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
      COMMISSIONER

      Appearances:
      Mr G Williams, with Mr G Thomas, for the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania, and Mrs L S McDermott.

      Date and Place of Hearing:
      2001
      July 23
      Launceston