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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Teagan Maree McPhail v Brezac Constructions Pty Ltd  QIRC 054
Teagan Maree McPhail
Brezac Constructions Pty Ltd
Recover of Pro-Rata Long Service Leave
8 April 2020
4 February 2020
INDUSTRIAL LAW – RECOVERY OF PRO RATA LONG SERVICE LEAVE – Employee resigned from employment – whether the employee is entitled to proportionate long service leave – whether employee terminated the employment illness
Industrial Relations Act 2016 (Qld)
Gibbons v eBet  QIRC 007
AWU v Sunshine Coast Private Hospital (2003) 172 QGIG 1097
Johnson & Johnson Pty Ltd v Amalgamated Metals Workers Union
Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd
Ms T McPhail
Mr Brezac for Brezac Constructions Pty Ltd
Reasons for Decision
- The Applicant filed an application for an order for the proportionate payment of long service leave under s 95 of the Industrial Relations Act 2016 (Qld) (‘the Act’) on the basis of illness and incapacity. The Respondent and former employer is Brezac Constructions Pty Ltd.
- The Applicant seeks a decision that the Respondent pay her the sum of $8,615.45 (gross), being the amount of pro rata long service leave said to be owed to her by the Respondent.
- The Applicant submits that she is entitled to pro rata long service leave in accordance with s 95(4)(b)(i) of the Act, which provides for a proportionate payment to an employee with more than seven but less than ten years' service where the employee terminates their employment due to illness or incapacity.
- It is not in contention that the Applicant was in continuous employment with the Respondent from 12 August 2009, until her resignation took effect on 21 June 2019. In summary:
- the employee was employed by the Respondent on 12 August 2009;
- she was initially employed in a part-time capacity, but after a period became a full-time employee; and
- On 24 May 2019, the Applicant tendered her written resignation from the Respondent's employment, and her resignation took effect on 21 June 2019.
- Based on that period of employment, the Applicant worked for 9 years, 10 months and 1 week. The proportionate long service leave entitlement, based on the information provided by the Respondent and calculated in accordance with section 95 of the Act, is 288.055 hours.
- Mc McPhail’s proportionate long service leave payment is calculated to be $8,353.61 gross.
- The only issue to be determined is whether the employee is entitled to be paid that amount by the Respondent in accordance with s 95(4)(b)(i) of the Act.
- The Act sets out the entitlement of employees for payment of long service leave for periods of ten years or more, and for proportionate payment for periods of continuous service where an employee has completed at least seven years continuous service, and where other specific conditions are met.
- Section 95 of the Act provides:
95 Entitlement – employees other than seasonal employees
(1) This section applies to an employee, other than a seasonal employee.
For provisions applicable to seasonal employees, see subdivisions 7 and 8.
(2) The employee is entitled to long service leave, on full pay, of—
(a) if the employee has completed 10 years' continuous service—8.6667 weeks; and
(b) after 10 years' service, if the employee has completed at least a further 5 years' continuous service—a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
(3) An employee who has completed at least 7 years' continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.
(4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—
(a) the employee's service is terminated because of the employee's death; or
(b) the employee terminates the service because of—
(i) the employee's illness or incapacity; or
(ii) a domestic or other pressing necessity; …”
- In the Application Form 14, the Applicant outlines a number concerns she had with her employer that do not relate to an illness. In summary, she also states the following:
- On 13 January 2019, the Applicant was admitted to the Logan Hospital with excessive bleeding caused by work related stress triggering a hormonal imbalance. She states she was consequently required to take hormonal medication for 5 months.
- On 24 May 2019, the Applicant advised her employer of her resignation.
- On 28 May 2019, the Applicant states that she was admitted to Logan Hospital for surgery to stop bleeding and has since been referred to a specialist at the Royal Brisbane Hospital.
- the Applicant utilised her sick leave for the notice period from 24 May 2019 - 21 June 2019, which was the recovery period from the surgery.
- The Applicant filed the following annexures to her submission:
- Text message sent to Peter Brezac, Andrew Brezac and Jodie Brezac advising that the Applicant had been admitted to hospital on 13th January 2019 (Annexure 1);
- Logan Hospital Pharmacy Department Discharge Medication Report dated 14 January 2019 (Annexure 2);
- Test message sent by Peter Brezac asking if the Applicant was OK dated 14 January 2019 (Annexure 3);
- Letter from Logan Hospital advising that the Applicant was added to surgery waiting list dated 6 March 2019 (Annexure 4);
- Letter from Logan Hospital advising of information for afternoon procedure dated 27 May 2019 (Annexure 5);
- Logan Hospital Inpatient progress notes dated 29 May 2019 (Annexure 6);
- Crestmead Medical Centre Medical Certificate dated 3 June 2019 (Annexure 7);
- Crestmead Medical Centre Medical Certificate dated 11 June 2019 (Annexure 8);
- Crestmead Medical Centre Medical Certificate dated 18 June 2019 (Annexure 9);
- Sunnybank Private Hospital Statement of Claim dated 5 September 2019 (Annexure 10);
- Metro South Health appointment letter dated 10 September 2019 (Annexure 11);
- Qld Government Gynecology clinic appointment letter dated 11 October 2019 (Annexure 12);
- Royal Brisbane Hospital patient label dated 30 October 2019 (Annexure 13); and
- Crestmead Medical Centre letter dated 17 January 2020 (Annexure 14).
- The Respondent made the following submissions, in summary:
- Brezac Constructions does not consider pro-rata long service leave is owing to the Applicant.
- If the Commission finds that pro-rata long service leave is owing, the amount calculated is $8,353.61 gross with calculations annexed to the submission.
- The commencement date in the Applicant’s written submission is incorrect, with the actual commencement date being 12 August 2009.
- The text messages in Annexures 1 and 3 to the Applicant’s submission are acknowledged, however the Respondent challenges these as evidence of illness or incapacity that would have warranted the Applicant’s resignation.
- With respect to Annexure 2, the Respondent challenges this as evidence of illness or incapacity that would have warranted the Applicant’s resignation, stating that this document is a pharmacy department list of medications and associated details dated 14 January 2019. The Respondents stated that this does not provide any assessment of Teagan McPhail’s capacity to complete her work duties rather a list of proposed, new or changed dosages of medications and supplements.
- With respect to Annexures 4,5 and 6, the Respondent submits that they were aware that the Applicant was on a surgery waiting list to receive surgical treatment to treat the root cause of her gynaecological symptoms. The Respondent submits that this is evidence of a medical issue and associated treatment however it is not evidence that would justify resignation due to ongoing illness or incapacity.
- The Respondent submits that the Applicant applied for leave for surgery from 28 May - 31 May 2019, but then resigned in writing on 24 May 2019. The Respondent notes that the resignation letter does not cite illness or incapacity as a reason for resignation.
- The Respondent disputes that the notice of surgery, confirmation of surgery and admission requirements and associated medical certificate for the surgery and recovery time are evidence of illness or incapacity that would have warranted the Applicants’ resignation.
- With respect to Annexures 7-12 the Respondents submit that these documents are not relevant as they are dated after the date that the Applicant resigned. The Respondents submit that there was no evidence at the time the Applicant resigned that there was going to be ongoing illness or incapacity that would have warranted her resignation.
- The Respondent challenges Annexure 14 as evidence that illness or incapacity were the motivating reasons for the Applicant’s resignation. The Respondent submits that the Applicant applied for leave for the period 29 June - 10 July 2020 suggesting that she considered that she would still be working for Brezac Constructions at that time. The Respondent also submits that the written resignation letter provided on 24 May 2019 does not cite illness or incapacity as a reason for resignation, rather ‘not one major reason’ but ‘a multitude of little things’. The letter also stated that the Applicant believed it was the perfect opportunity to move on as there was a quiet period in the business approaching.
- The Respondent refers to the feedback provided by the Applicant following her resignation, noting that none of the reasons for leaving including illness or incapacity.
- The Respondent refers to the Applicant’s history as demonstrating her capacity to work, particularly after being cleared as fit for duties by her doctor in the months leading up to corrective surgery.
- The Respondent submits that the letter from Dr Weerasinghe of the Crestmead Medical Centre dated 17 January 2020 is not evidence of a doctor’s assessment of the Applicant’s ability to continue regular employment. They submit that the letter states what the Applicant told her General Practitioner as to why she could not continue her regular employment; however, there is no evidence from her treating doctor to support the Applicant’s claim. The Respondent notes that the letter was written almost 7 months after the Applicant’s resignation.
- At no time during the Applicant’s employment did a medical certificate require reduced duties for the Applicant, with all medical certificates clearing the Applicant for normal work duties.
- With respect to the Applicant’s claim of a history of stress related tension headaches related to her employment in April 2015, the Respondent submits that this is not relevant as no evidence of this as being the real and motivating reason for the Applicant’s resignation other than a statement from a General Practitioner dated 17 January 2020 that the Applicant had an issue in 2015.
- The Respondent submits that on the balance of evidence the Applicant is attempting to change the real or motivating factor that led to her resignation to gain access to pro-rata long service leave. The Respondent also submits that even if there was an ongoing illness or incapacity post-surgery (of which there is no evidence) the Applicant did not know this at the time of her resignation and hence illness or incapacity could not have been a real or motivating factor for her resignation.
- The Applicant responded to the Respondent’s submission, with a summary as follows:
- The Respondent’s calculations are accepted as accurate.
- The Respondent’s commencement date is accepted as accurate.
- The Applicant submitted that the Respondent is not qualified to challenge medical evidence as they are not in the medical industry.
- The application for annual leave is not relevant to the Applicant’s medical condition.
- The illness commenced in January 2019 and is ongoing.
- On 24 May 2019 the Applicant was asked for a list of improvements that the Respondent could do better to improve their workplace. The Applicant submits that the Respondent was already well aware of her medical condition, and the list was “some reasons for leaving”.
- The Applicant submits that no clearance to work was ever sought be the Respondent and none was provided. The Applicant states that she came back to work once dates on the medical certificate expired or prior to the medical certificate expiring due to pressure to come back as soon as possible.
- The Applicant submits that medical practitioners are only obliged to comment on the Applicant’s clinical notes and not on her abilities to perform employment duties.
- The Applicant submits that her clinical notes history is relevant to her ongoing medical condition.
- The medical evidence suggests that the Applicant’s medical condition had been ongoing since January 2019. The Discharge Medication Record from the Logan Hospital Pharmacy Department dated 14 January 2019 outlines the medication the Applicant was receiving following her short hospital stay to treat her medical condition.
- On 6 March 2019, the Applicant received correspondence from the Logan Hospital advising that her name had been added to the elective surgery waiting list.
- The Progress Notes Inpatient dated 29 May 2019 and signed by Dr Hnin Yee Kyaw, Registrar, outlines the following:
“I hereby certify that Miss TEGAN MAREE MCPHAIL hereinafter called the patient was admitted to the Logan Hospital as an Inpatient on 28/05/2019 suffering from a medical condition requiring surgical management the patient was totally incapacitated for work, and is still a patient on 29/05/2019. The patient is to attend the Out-patient Dept. and, I anticipate, will be unfit for duty up to 2/6/2019 and including 2/6/2019.”
- The following medical certificates were submitted by the Applicant in support of her application:
- Dr Chris Dalby, Crestmead Medical Centre (3/6/2019) - “I examined Ms Teagan McPhail who is suffering from a medical condition and will be unfit for duty up to and including 3/6/2019 - 7/6/2019."
- Dr Rushit Botadra, Crestmead Medical Centre (11/6/2019) - “I examined Ms Teagan McPhail who is suffering from a medical condition and will be unfit for duty up to and including 14/6/2019.”
- Dr Brad Gillis, Crestmead Medical Centre (18/6/2019) - “I examined Ms Teagan McPhail who is suffering from a medical condition and will be unfit for duty up to and including 18-21/6/2019.”
- A letter dated 17/01/2020 from the Applicant’s General Practitioner Dr Asoka Weerasinghe of the Crestmead Medical centre states the following:
“Ms Teagan McPhail is a regular patient to me for the last 3 years. She is suffering from chronic lower abdominal pain and irregular bleeding per vagina with hormone imbalance since January 2019. She was investigated for her above medical issues by gynaecology clinic Logan hospital. She said that she could not continue her regular employment with intermittent exacerbation of abdominal pain and bleeding issues.
She has a history of stress related tension headaches which was related to her employment in April 2015. Therefore she was referred to a psychologist under a general practitioner mental health care plan.
This letter was issued at the request of Teagan.”
- With regards to the summary of medical evidence set out above, and in the absence of any evidence suggesting otherwise, I accept the evidence of Dr Weerasinghe that the Applicant was suffering from an illness from January 2019 up to and beyond the time the Applicant submitted his resignation.
Section 95(4)(b)(i) - legal principles
- (a)Was the reason for the termination one which fell within the section?
- (b)Was the reason genuine and not simply a rationalisation of another reason which did not fall within the section; or a reason that while having the appearance of truth or right, is in reality a pretence or a deception; or a frivolous reason?
- (c)Although the reason claimed may not be the sole ground which caused the employee to make a decision to terminate his or her employment, was it the real or motivating reason?
- (d)Did the reason claimed cause the employee to terminate his or her employment?
- (e)Did the reason claimed affect the employee in relation to the particular service he or she terminated?
- (f)Was the situation which the employee was in at the point of the termination, one in which a reasonable person might have felt compelled to seek to resolve by terminating his or her employment?
Reason for termination
- On 24 May 2019, the Applicant tendered a written resignation from her employment at Brezac Constructions, effective as at 21 June 2019. The resignation letter is as follows:
“I would like o [sic] to notify you that I am resigning from my position as Project Admin for Brezac Constructions.
Thank you for the opportunities you have given me for the most part I have enjoyed my time working here. There is not one major reason for leaving it is multitudes of little things. I feel as a quiet period approaches it is the perfect opportunity to move on.”
- On 27 May 2019, at the request of Brezac Constructions, the Applicant provided feedback on her resignation. The feedback provided is as follows:
“Some reasons for leaving:
- After requesting my pay to be fix [sic] for the short pay of over time. This has been ignored and I feel there is no respect and was told my short pay request would get nasty. I then asked if I don’t deserve to be paid for the hours I have worked. Peter said he didn’t say that.
- When I handed in my notice Jodie said she was advised I was going to be taking legal action and this make [sic] me feel like maybe I should, but I never mentioned legal action so where did that come from? I don’t want to work with people who have no respect or communication, and this confirms I have made the right decision to leave.
- Every time I put in holiday request it seems to be a problem and takes months for it to be approved and still have not had notification on holidays applied for months ago being approved.
- When I do go on holidays and I come back it takes me weeks to fix all the mistakes and errors. This is after training is given prior to leaving and emails detailing processes.
- When I try and give Cameron training/feedback on the errors I get a bad attitude from Cameron.
- Then I get asked to get along with Cameron and made to feel like it is my fault for his bad attitude.
- A lot of exceptions place on myself with no recognition.”
- Having accepted that the Applicant was suffering from an illness, the question turns to whether the illness was the genuine reason for terminating her employment.
- The Respondent submits that the Applicant did not resign because of illness as it was not mentioned in her letter of resignation, nor in the feedback provided to the employer. The Applicant’s resignation letter refers to “a multitude of little things” that prompted the resignation, without provision of further details as to the nature of the ‘little things’.
- In Gibbons it was held that it is open for the Commission to find that a worker’s illness caused the worker to terminate his or her employment even though a factor other than the illness was taken into account in reaching that decision.
- The decision in Gibbons states that the appropriate enquiry is whether the reason claimed by the employee for the termination is the reason upon which the employee placed the most weight in making the decision to terminate the employment.
- The Applicant’s resignation letter refers to “a multitude of little things” that prompted the resignation, without provision of further details as to the nature of the ‘little things’. The letter suggests that the resignation was the result of a number of factors but does not provide clarity as to the dominant factor motivating the resignation.
- The Application for proportionate payment of long service leave filed by the Applicant outlines a number of concerns that she had with her employer as well as the history of her illness since January 2019. In my view it is more probable than not that this is an honest account of the reasons for the Applicant’s termination. It is unlikely to be deceptive or a rationalisation given that it contains details that do not serve the Applicant’s interest. If it were deceptive or a rationalisation, the references to work-related issues, which do not assist the Applicant’s case, would presumably have been minimised.
- The list of reasons provided by the Applicant in her feedback to the Respondent does not include a reference to her illness. The Respondent submits that this indicates that the illness was not a reason for termination. The Applicant however submits that the feedback was entitled ‘Some reasons for leaving’, indicating that there were other reasons that were not included. The Applicant submits that the feedback was given in response to being asked for a list of improvements Brezac Constructions could do better to improve their workplace and that the Respondent was already well aware of her medical condition. This is a reasonable explanation as to why the illness was not listed.
- As stated in Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd, an employee’s motivation or statements to their employer cannot be determinate of their entitlement because they alone cannot prove the cause of the employee’s termination. Relevantly:
“If an employee resigns due to illness, but tells their employer they have done so to find a new line of work, the cause of the termination is the illness. Similarly, where an employee claims to have been suffering an illness, but is found to be healthy, that employee has not terminated their employment because of an illness. They may honestly believe that illness was the reason for their termination, but that will not render them eligible under the Act.”
- In the decision of Johnson & Johnson Pty Ltd v Amalgamated Metals Workers Union, based on a similar provision, the Commission held that despite the worker’s failure to disclose his injury to the employer at the time of the termination, the employee was still entitled to claim payment for his long service leave because he had provided sufficient evidence to demonstrate that the injury was a genuine reason for the termination of his employment. The fact that he had not disclosed this to his employer at the time of termination was not detrimental to his application. In this matter Watson J concluded that if the employee had a genuine reason for termination that fell within the section, it was irrelevant if there were other motivations for termination.
- After submitting her resignation, the Applicant continued to attend medical appointments for a period of time thereafter, as evidenced by the medical certificates from the Crestmead Medical Centre. The Respondent submits that this is irrelevant as it occurred after the resignation. Whilst this does not confirm the reason for termination, it does serve to confirm the ongoing nature of the illness and dismisses any view that the Applicant resigned to obtain work elsewhere.
- I accept that Ms McPhail was frustrated by a number of issues in her workplace, and these issues contributed to her decision to leave her employment. I am however satisfied that the main and motivating reason for the termination of her employment was the illness that she had endured from January 2019 up until the time of her resignation.
Did the illness impact Ms McPhail’s ability to perform his role?
- There is limited evidence about the impact of the illness on the Applicant’s ability to perform her role. The letter from Dr Weerasinghe states the following:
“Ms McPhail is a regular patient to me for the last 3 years. … She said that she could not continue her regular employment with intermittent exacerbation of abdominal pain and bleeding issues.”
- It is not necessary that the illness prevented the Applicant from working, only that it impacted on her ability to perform the role. On the available evidence it appears that the Applicant’s illness did impact her ability to perform her role. Whilst I accept the Respondent’s submission that Dr Weerasinghe’s letter was a reflection of the Applicant’s comments, if this was inconsistent with the knowledge the Doctor had of the Applicant as his regular patient for 3 years it would presumably not have been included in the letter.
Reasonableness of the decision to terminate employment
- In consideration of all the material before me, on the balance of probabilities, I find that a reasonable person would have felt compelled to seek to resolve the situation by terminating their employment.
- I am also persuaded that the timing of the resignation, submitted 4 days prior to the Applicant undergoing surgery for her illness, is significant in consideration of the reason for the termination.
- The purpose of these proceedings is to determine whether the Applicant has an entitlement to pro rata long service leave in accordance with section 95(4)(b)(i) of the Act. All that the Applicant must demonstrate is that she terminated her employment because of her illness or capacity.
- Having considered the evidence and applicable legal principles, I am satisfied that:
- Ms McPhail worked for Brezac Constructions on a continuous basis between and 17 September 2015. The total number of long service leave hours accrued is 288.05;
- from January 2019, Ms McPhail was suffering from a persistent gynaecological illness, constituting an illness for the purpose of s 95(4)(b)(i) of the Act;
- the illness impacted on Ms McPhail’s circumstances at work due to intermittent exacerbation of symptoms;
- although there were other contributing factors to Ms McPhail’s decision to terminate her employment, I am satisfied her illness was the motivating reason behind her decision to terminate her employment; and
- the situation of Ms McPhail at the time of his termination was one a reasonable person might have felt compelled to resolve by terminating their employment.
- I am satisfied that this application meets the requirements of s 95(4)(b)(i) of the Act and therefore make the following Order:
- Brezac Constructions is to pay Teagan Maree McPhail the sum of $8,353.61 (gross), being the amount of pro rata long service leave owed to her, within 28 days.
- Published Case Name:
Teagan Maree McPhail v Brezac Constructions Pty Ltd
- Shortened Case Name:
McPhail v Brezac Constructions Pty Ltd
 QIRC 54
08 Apr 2020