T9769 - 29 November 2001
TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Secretary, Department of Infrastructure, Energy and Resources
Netcraft Pty Ltd ACN 009 567 033
Long service leave dispute - alleged wilful misconduct - pro rata entitlement - order
REASONS FOR DECISION
 This was an application to the President for a dispute hearing made under Section 13 of the Long Service Leave Act 1976 (the LSL Act), by the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards Tasmania (the Secretary). The President referred the application to me for hearing.
 The employee concerned, Patricia Gaye Cox, now of Kununurra in Western Australia (the employee), had her employment terminated by Netcraft Pty Ltd (ACN 009 567 033) of 61 Bundalla Road, Margate (the Company) on 20 September 2000, on the grounds of alleged serious and wilful misconduct. The employee commenced employment with the Company on 5 June 1988.
 The employee claimed that the termination of her employment had not been for serious and wilful misconduct and she claimed an entitlement to pro rata long service leave by reference to the LSL Act, s8(3)(d):
"(3) Subsection (2)(b) applies to -
In addition, the employee claimed an amount calculated in accordance with the LSL Act, s8(2)(b):
"(2) Subject to subsection (4), the period of long service leave to which an employee is entitled under this Act is -
 Ms Cox did not attend the hearing of this application.
 On 9 March 2001, Commissioner T J Abey issued a decision in matter T9219 of 2000 (the previous decision), in which he found that the employee's employment had been unfairly terminated. Being of the view that reinstatement was not a practical option, he ordered a payment in compensation.
 At the commencement of the hearing of this application, the Secretary submitted that the Commission should establish the relevant facts by reference to the transcript of the hearing and decision of Commissioner Abey in the previous decision. The Company accepted this proposal, but pointed out that due to Mrs Cox's absence from the hearing it was unable to cross-examine her.
 The officer of the Department who investigated this matter, Mr Robert Millhouse, gave his report in the form of a witness statement. His evidence was not challenged.
 The relevant facts were that Mrs Cox commenced her employment with the Company on 5 June 1988, and that employment was terminated on 20 September 2000 for alleged serious misconduct. Mrs Cox had been employed as a net maker and subsequently became a sales representative. Except for some absences, which did not break Mrs Cox's continuity of employment, but, did reduce her period of service, Mrs Cox worked full-time for the Company and was earning $14 per hour in a 38 hour week just prior to the termination of her employment.
 The Secretary relied on the investigating officer's witness statement and the transcript and decision in the previous decision in prosecuting Mrs Cox's claim.
 The Company maintained that Mrs Cox had been dismissed for serious and wilful misconduct, notwithstanding Commissioner Abey's decision. The Company said that theft charges against Mrs Cox relating to the period of her employment with the Company had been instituted and it sought an adjournment of proceedings to enable Mrs Cox to be present for cross-examination and for the theft charges to be heard.
 A Director of the Company, Steven Alexander Shield, gave evidence against the claim in the form of a statement. He said in 25 years as an employer he had never come across such a serious case of misconduct and he could not see what other course the Company could have taken. He also referred to the later serious allegations of theft.
 Mr Shield confirmed that the allegations of theft were known to the Company at the time of the termination of Mrs Cox's employment, but, they were not put forward as part of the reasons for the termination. They were excluded from consideration in the previous decision.
 The question is, was the employee dismissed for serious and wilful misconduct? I do not consider it necessary to detail the misconduct since that was done in the previous decision.
 As I have said, the employee relied upon the LSL Act, s8(3)(d) (supra).
 As the theft charges against Mrs Cox were raised after the termination of her employment, I do not accept them as relevant to this application. Commissioner Abey did not accept them either.
 I decline to adjourn the matter and call Mrs Cox to answer questions in relation to the theft allegations as they were raised after the termination of her employment and were not grounds for that decision.
 The primary question in this application is raised by the very provision in the LSL Act, s8(3)(d) (supra), relied upon by the employee.
 Commissioner Abey was satisfied that the employee's actions were unacceptable, but, not such as to warrant instant dismissal; he awarded her compensation on the basis that she should have received a warning to amend her behaviour. Had Commissioner Abey considered the employee's actions to be serious and wilful misconduct, he would have upheld the dismissal as warranted, but, he did not.
 Commissioner Abey found that Mrs Cox had been unfairly treated in comparison to the other employees of the Company and except for "the effluxion of time and the adversarial nature of proceedings", he would have reinstated her. I am not able, therefore, to find that Mrs Cox was dismissed for serious and wilful misconduct in that whilst her conduct was serious, it could not be termed wilful in that no warning had been given to her by the Company to desist.
 I find that the employee is entitled to a payment under the provisions of the LSL Act in that she had been employed continuously by the Company for over twelve years and her employment was terminated for a reason other than serious and wilful misconduct.
 The order in this decision will be based upon the following facts given in evidence:
In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order that within twenty-one days from the date of this decision, Netcraft Pty Ltd (ACN 009 567 033) of 61 Bundalla Road, Margate, Tasmania 7054, pay to Patricia Gaye Cox, PO Box 373, Kununurra, WA 6743, the sum of five thousand, six hundred and sixty-eight dollars and eighty-eight cents ($5,608.88) being a pro rata entitlement due under the Long Service Leave Act 1976.
P A Imlach
Date and place of hearing: