INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2018] ICQ 001 |
PARTIES: | TRANSPORT WORKERS’ UNION OF AUSTRALIA, UNION OF EMPLOYEES (QUEENSLAND BRANCH) (appellant) v LINFOX AUSTRALIA PTY LTD (respondent) |
FILE NO/S: | C/2017/16 |
PROCEEDING: | Appeal |
DELIVERED ON: | 9 February 2018 |
HEARING DATE: | 27 November 2017 |
MEMBER: | Martin J, President |
ORDER/S: |
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CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – GENERAL EMPLOYMENT CONDITIONS – LONG SERVICE LEAVE – ENTITLEMENT TO LEAVE – OTHER MATTERS – where employee applied for entitlement to a proportionate payment for long service leave – where employee terminated employment – whether employee terminated employment with employer “because of” mental illness – whether the Deputy President erred in rejecting evidence – whether the Deputy President failed to provide any or adequate reasons in rejecting evidence - Industrial Relations Act 1999 s 43(4)(b)(i) |
LEGISLATION: | Industrial Relations Act 1999 Acts Interpretation Act 1954 |
CASES: | Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2017] QIRC 074, related Abbott v Blackwood [2014] ICQ 031 Blackwood v Mana [2014] ICQ 027 Footscray City College v Ruzicka (2007) 16 VR 498 Johnson & Johnson Pty Ltd v Amalgamated Metals Workers Union (1987) 21 IR 457 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 Trust Company of Australia Ltd v Commissioner of State Revenue (2006) 15 VR 1 |
APPEARANCES: | L S Reidy directly instructed for the appellant R Dalton directly instructed for the respondent |
“ I would like to thank you all for looking at any options for a transfer to a Linfox site in Perth but I cannot plan a trip over to W.A. by road while surviving on a weekly wage (holiday pay) and the chance of any financial support I requested for fuel. I also believe it is asking for more than what any employee could expect from an employer. I truly appreciate your efforts on my behalf.
I am certain I want to take this trip over to Perth to start my life over fresh after my recent break up with Catherine over the last weekend. Although it seems like a rushed decision to do this I have somewhat seen this coming from Catherine and I have been contemplating what I would do if this happened. I see this time of my life as an opportunity to travel around parts of Australia that I have never seen and this has always been a dream of mine to do so.
Today I am giving you 2 weeks’ notice of my resignation from Linfox Virginia DC of which my last day will be Monday 14/11/2016.”
“This is the case of a man who has deteriorated psychiatrically through failed relationships which has brought on a condition of mixed anxiety and depression. He resigned in relation to his altered mood state. He found it hard to make decisions at this time and was quite perplexed. He did not know what to do. He did not understand the necessity to seek mental health care until it was too late.
…
Mr Scheidel resigned from his position at a time when he was suffering a mental illness and was not thinking clearly. He was incapacitated. If he had not been suffering a mental illness he would have had other options that he could have considered such as taking leave or discussing the problems with his employer but he was too confused to do this.
In short his resignation occurred in the setting of him having a mental illness and this is the reason he resigned.”
Legislation
“43 Entitlement
(i) the employee’s illness or incapacity; or
(ii) a domestic or other pressing necessity; …”
Grounds 1(a), 1(b)(vi), 1(b)(vii) and 1(c): Whether Mr Scheidel resigned ‘because of’ an illness
“[38] However, the expression ‘because of’, in its everyday usage, can have two separate and distinct meanings. Firstly, as noted by Swan DP, Fisher C and Asbury C (above), the expression can be followed by the reason why a particular action was taken. Secondly, the expression can be followed by an explanation of why a particular action was taken. Sometimes the reason advanced by an employee as to why they resigned their employment might also coincide with the explanation for their resignation. However, this is not such a case.
[39] As noted by Neate C in eBet at [106], there is a legal distinction between having an illness and resigning because of it. It is necessary to determine what motivated the employee to resign their employment.
[40] If, as clearly seems to be the case, Mr Scheidel resigned his employment to ‘move on’ after his relationship breakdown, then that was the motivation for his resignation and not his undiagnosed medical condition. He did not resign because of his mental health or because he had a mental health issue. He was unaware that he had any issue until more than four weeks after he resigned his employment. His mental health issues might help explain his decision to resign, but that is not the test.” (emphasis original)
“[40] … The Concise Oxford Dictionary, 10th ed, (1999), defines ‘because of’ as meaning ‘by reason of’. So defined, the expression ‘because of’ is reduced to its bare bones, so to speak. To seek to clarify the expression by language of my own would involve the risk of placing a judicial gloss or qualification on the expression. Further, to go beyond this definition with further definition would be to go around in circles or at least, hopefully, in a circle that would return one to the beginning, but also with the risk I have mentioned. I merely observe that ‘because of’ is an expression of causation; if event Y occurred ‘because of’ event X, it follows that event X caused event Y.”
“[157] I was taken to decisions of the highest authority in Australia and the United Kingdom about the words ‘on the ground of’, ‘by reason of’ and cognate expressions. I do not think it necessary to deal with all of these cases. It is essential to attend to the words of the statute.
…
[159] Lockhart J in Mt Isa Mines, supra at 321 to 326 examined the operation of the SD Act and the phrase ‘by reason of’ in the light of all these cases, with the exception of IW v City of Perth, supra. His Honour said at 321-22:
In my opinion the phrase ‘by reason of’ in s 5(1) of the SD Act should be interpreted as meaning ‘because of’, ‘due to’, ‘based on’ or words of similar import which bring something about or cause it to occur. The phrase implies a relationship of cause and effect between the sex (or characteristic of the kind mentioned in s 5(1)(b) or s 5(1)(c)) of the aggrieved person and the less favourable treatment by the discriminator of that person.
…
[161] Lockhart J then expressed the view that this divergence of opposite views perhaps obscured the proper inquiry dictated by the words of the statute. His Honour was of the view that motive or intention, whilst not necessary, may be relevant, if present, to the resolution of the statutory task of answering the factual question as to whether there is a relationship of cause and effect between the sex or pregnancy or characteristic in para(a), para(b) or para(c) of subs 5(1) and subs 7(1) and the comparatively less favourable treatment. If I may respectfully say so, I agree with that proposition and with his Honour's lucidly expressed reasons at 321 to 326.” (emphasis added)
“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
“[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:
‘The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that parliament intended to deal with [footnotes omitted].’”[7]
“[16] Next, given the circumstances, to construe the legislation as the respondent proposes, namely, that subs (2A) is to be read as covering all s 98/98A applications such that the concluding words preclude the court from awarding costs against the unsuccessful claimant, would be to disregard the legislative policy referred to earlier and would produce incongruous and manifestly absurd results that could not have been intended by Parliament. A court strains not to construe legislation to produce such an effect. Over 150 years ago Lord Wensleydale referred in Grey v Pearson to what became known as “the golden rule”:
… I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Court of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.
It is the case, as Pearce and Geddes point out in Statutory Interpretation in Australia, that ‘the golden rule contemplated that a mistake had been made in the wording of the Act’. But the rule is also otherwise applied to avoid construing legislation so as to produce patently unintended or absurd results.”
“In the case of a worker who has completed with an employer at least 5 years service as an adult, and whose services are terminated by the employer for any reason other than the worker’s serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity or by reason of the death of the worker, be a proportionate amount on the basis of three months for fifteen years service (such service to include service with the employer as an adult and otherwise than as an adult).”
“558 What court may do
(1)On an appeal under section 556 or 557, the court may—
Grounds 1(b)(i) and 1(b)(v): Whether the Deputy President erred in rejecting the evidence of Dr De Leacy
Ground 1(b)(iv): Whether the Deputy President failed to provide any or adequate reasons in rejecting the evidence of Dr De Leacy
“[7] The extent to which reasons are necessary and the level of adequacy required will depend upon the circumstances of each case. What will be sufficient in one case may not be sufficient in another. The extent to which reasons are required was considered by Muir JA in Drew v Makita (Australia) Pty Ltd where he said:
“[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.
[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons.’ For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:
‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’”
“[41] Importantly, in terms of the provisions at s 43(4)(b)(i) of the Act, there is no medical evidence to support any contention that Mr Scheidel was unable to continue in his employment because of his illness or incapacity. In fact, much of the evidence points in the other direction. Immediately prior to his resignation he was exploring options to transfer to a Linfox operation in Western Australia. When he did seek medical attention on 30 November 2016 his stressors were identified as "relationship breakdown and workplace dispute" and the medical certificate he was issued appears to cover a period of only a few days. Further, all of his Facebook posts around that time portrayed him as having a positive state of mind.
[42] That Dr De Leacy might have diagnosed Mr Scheidel as having an Adjustment Disorder with Mixed Anxiety and Depressed Mood on 23 March 2017 is not relevant to his situation in November 2016. By March 2017, Mr Scheidel was unemployed and had run out of money; he was living with a friend; his car had been repossessed; and he had been declared bankrupt. All these events, as conceded by Dr De Leacy in his cross-examination, could have contributed to the state of Mr Scheidel's mental health at the date of the diagnosis.” (emphasis added)
Orders
[1] [2017] QIRC 074.
[2] (2006) 15 VR 1, 20.
[3] (2002) 116 IR 186, 226-228.
[4] At [40].
[5] Acts Interpretation Act 1954 s 14A.
[6] (1998) 194 CLR 355 at 381-382.
[7] At 384.
[8] (2007) 16 VR 498 at 504-505.
[9] (1987) 21 IR 457.
[10] At 471.
[11] At 469.
[12] Abbott v Blackwood [2014] ICQ 031 at [16]-[18]. See also Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110.
[13] [2014] ICQ 027.
