Gibbons v eBet Ltd[2015] QIRC 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

  Decision

1. [1]
   This is an application for an order for the payment of unpaid wages under s 278 of the Industrial Relations Act 1999 ("the Act").  The application was made by Jason Clifford Gibbons, of the Department of Justice and Attorney-General, a duly appointed inspector under the Act ("the Applicant").  The Applicant seeks a decision that eBet Ltd ("the Respondent") pay Kasey Ann Hanson ("the employee") the sum of $9,961.43, being the amount of pro rata long service leave said to be owed to the employee by the Respondent.

Background

2. [2]
   It is agreed that the employee was in continuous employment of the Respondent and its predecessors from 28 February 2005 until 15 April 2013.  In summary:

1. (a)
   the employee was employed by Bounty Ltd (a subsidiary of Golden Casket Lottery Corporation Ltd) on 28 February 2005;

2. (b)
   in mid-2007, the Golden Casket Lottery Corporation Ltd, including Bounty Ltd, was sold to the Tatts Group Ltd, and the employee was engaged by the Tatts Group Ltd and continued in the same position and continued performing the same duties;

3. (c)
   in early January 2008, the Respondent purchased Bounty Ltd, and the employee was engaged by the Respondent and continued in the same position and performed her same duties;

4. (d)
   the employee was promoted in March 2008 to the full-time position of Queensland Office Manager, in addition to the Team Leader CLUBline Software support role;

5. (e)
   on 1 July 2009, the employee entered into an employment agreement with the Respondent for the position of Team Leader CLUBline Software Support, Queensland Office Manager;

6. (f)
   in June 2011, the Respondent purchased Odyssey Gaming Ltd and, in October 2011, the Respondent upgraded the employee to the full-time position of Call Centre Manager; and

7. (g)
   on 14 April 2013, the employee tendered her written resignation from the Respondent's employment, and her resignation took effect on 15 April 2013.

3. [3]
   Based on that period of employment, the employee worked for eight years one month and 18 days.  The proportionate long service leave entitlement, based on the provided information and calculated in accordance with s 43(3) of the Act is 7.048 weeks.  At the time when the employee ceased to work for the Respondent, she was paid $1,413.37 per week.  Her proportionate long service leave payment is calculated to be $9,961.43 gross.  There is no dispute about that figure.  The only issue is whether the employee is entitled to be paid that amount by the Respondent.

Legislative provisions

4. [4]
   The Act sets out the entitlement of employees for payment for long service leave for periods of 10 years or more and for proportionate payment for periods of continuous service where an employee has completed at least seven years continuous service or if other specific conditions are met.

5. [5]
   Given the terms of the application in this case, the relevant subsections of s 43 of the Act are as follows:

"43Entitlement

(1)This section applies to all employees, other than seasonal employees.

…

(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—

 …

 (b)the employee terminates the service because of—

  (i)the employee’s illness or incapacity; or

  …

 (c)the termination is because the employer—

(i)dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or

  (ii)unfairly dismisses the employee; or

  …

In this section—

proportionate payment means a payment equal to the employee’s full pay for a period that bears to 8.6667 weeks the proportion that the employee’s period of continuous service (stated in years, and a fraction of a year if necessary) bears to 10 years."

6. [6]
   The application was put in the alternative on three grounds, relying on s 43(4)(b)(i), s 43(4)(c)(i) and s 43(4)(c)(ii).  In other words, it was contended that the payment of $9,961.43 should be made to the employee because:

1. (a)
   the employee terminated her services because of her illness or incapacity; or

2. (b)
   the employee was, in effect, dismissed for a reason other than her conduct, capacity or performance (by repudiation of her contract of employment, leading to constructive dismissal); or

3. (c)
   the employee was unfairly dismissed.

7. [7]
   The Applicant submits that, so long as one of those grounds is satisfied, the agreed amount should be paid to the employee.  One set of circumstances applies to the case and each ground was put, initially at least, on an "equal basis."

8. [8]
   It is appropriate to deal with the grounds in the order that they appear in the Act, particularly as the employee referred to s 43(4)(b)(i) in her letter of resignation and because, in final submissions, the Applicant described this ground as being the primary reason for the employee ceasing employment.

9. [9]
   Before considering each ground it is important to set out the factual context.  That includes the nature of the positions in which the employee was employed by various companies in the period from 28 February 2005 to 15 April 2013, the circumstances in which the employee developed concerns in relation to her employment, and the timing and nature of the illness from which the employee suffered from early February 2013 until her resignation on 15 April 2013 and beyond that date. 

10. [10]
    It will also be appropriate to consider the legal arguments about how the Commission should approach dealing with the three grounds, particularly the proper construction of s 43(4)(c)(i) and (ii).

 The nature of the employee's employment from 2005 to 2013

11. [11]
    The employee started working for Bounty Ltd on 28 February 2005 on a full-time basis as Help Desk Support Operator.  Her duties involved receiving customer phone calls, resolving their issues such as payroll and finance issues within the software.  She did not have any supervisory or management roles in this position.  Bounty Ltd provided software for a payroll package, finance package, membership package, gaming analysis package and compass software package.  Their gaming software monitors poker machine turn-over and membership loyalty rewards.  Their clients included sporting clubs, RSLs and surf clubs.

12. [12]
    In 2006, after about 12 months of working at Bounty Ltd, the employee was offered either a redundancy (because the company was restructuring) or the newly created position of Software Support Analyst.  She decided to accept the new position, which involved a supervisory and training role.  As more staff came into the Help Desk, she was required to train them.  The employee was heavily involved in onsite support and training.  This involved up to week-long trips away to Sydney and Melbourne.  She was still required to do phone support and testing of the software packages, and also wrote up procedures and manuals for customers.  She started doing this role jointly with another person.

13. [13]
    In 2007, about a year after the employee became a Software Support Analyst, the other person left Bounty Ltd and the employee led the Help Desk.  At this time there were four staff, and the employee had to take up more responsibility with the Help Desk team.  As a consequence, the employee did not travel as much for customer training purposes.  The other person was replaced by someone who worked with the employee at the Club, initially on a traineeship.  The employee trained her in the Bounty Ltd product.

14. [14]
    When Tatts Group Ltd acquired Bounty Ltd in 2007, the employee remained in her current position and continued performing her current duties.

15. [15]
    In early January 2008, Tatts Group Ltd sold Bounty Ltd and its operations to the Respondent.  Initially nothing changed for the employee, though some other staff left after that sale.  In early February 2008, the employee first met the Respondent's CEO, Anthony (Tony) Toohey.  Mr Toohey, and a manager from Sydney, came to Brisbane and met the staff and gave a presentation about eBet.  They promoted integration between the old Bounty/Tattersall's staff and eBet staff who were in Sydney.

16. [16]
    On the recommendation of the previous Financial Controller and Office Manager in Brisbane, Mr Toohey appointed the employee as the manager of the Queensland office.  In that position the employee was required to manage the office of up to 10-12 people in their positions as the Help Desk, Development, IT and Projects departments.  The five staff in the Help Desk reported specifically to her, and others reported to their own heads of departments.  Although the employee did not have a copy of the email setting out the job description, she gave evidence that the job description was the same as Schedule C of her employment agreement with the Respondent dated 1 July 2009. 

17. [17]
    That employment agreement described the employee's position as Team Leader CLUBline Software Support, Queensland Office Manager.  The job description was set out in Schedule C.  The employee described the position of Team Leader CLUBline Software Support as "pretty much the position I was doing" when the Respondent purchased Bounty Ltd, and the Queensland Office Manager role "was added to this."  (Exhibit 3 para 26)

18. [18]
    The Position Overview in Schedule C of the employment agreement dated 1 July 2009 listed the following responsibilities:

• Managing the eBet Queensland office, including monitoring and reporting on punctuality and attendance.

• Dealing with contractors and suppliers to ensure the Queensland office operates smoothly.

• Team Leading the Compass and CLUBline help desks.

• Managing the release process for CLUBline upgrades.

• Managing escalations from the help desks and reporting any unresolved problems to the Customer Support Manager.

• Identifying problems that require additional expertise and taking appropriate action including referring problems that require high-level support or training.

• Ensuring Software Support Analysts are managing support calls from receipt through to completion, and are keeping the customers informed.

• Updating and maintaining the in-house system to allow the accurate recording of calls received and resolution activities.

• Following new developments in hardware and software products.

• Promoting the help desk service and encouraging user feedback.

• Where applicable, providing training to Customers on eBet's software by way of the telephone, modem, or on site person to person.

• Professionally installing, rectifying and/or upgrading systems and software as required.

• Providing on site training on CLUBline's suit of products.

• Cross-skilling support analysts across other eBet software and hardware systems.

• Undertaking projects as allocated by the Customer Support Manager or other Senior Manager.  (Exhibit 3 KH2)

19. [19]
    In addition to performing those responsibilities, the employee was selling products via "cold calls" or while training customers throughout Queensland.  She also undertook performance review of the five Help Desk staff who reported directly to her.

20. [20]
    The employee reported to Sue Hopkins, the Customer Support Manager in Sydney.  Ms Hopkins conducted performance reviews of the employee at face-to-face meetings in Sydney or Brisbane.  Ms Hopkins provided written reports on the outcome of each performance review.  According to the employee, Ms Hopkins did not ever provide negative feedback or told the employee that she had to improve her performance.

21. [21]
    Effective from 1 July 2010, the employee received an increase in her annual salary of $5,000.  The letter from the Operations Manager notifying the employee of the increase said that it was "as a result of your exemplary work."  The letter concluded "Congratulations on your achievement as this reward is much deserved."

22. [22]
    In June 2011, the Respondent acquired Odyssey Gaming.  The employee's position and duties did not change.

23. [23]
    Effective from 1 September 2011, the employee received an increase to her salary of $3,500.  The letter from Ms Hopkins stated that the increase was "to reflect our recognition of your role as Team Leader and Manager and the value your contribution adds to our business."

24. [24]
    In about October 2011, the employee was in Sydney to meet with Ms Hopkins.  Mr Toohey brought them both into a meeting and said, in effect, that as a result of the Respondent acquiring Odyssey there were two people in the same position in Brisbane. Decisions needed to be made.  He indicated that Ms Hopkins and Vince Nescri (also based in Sydney) had faith in the employee and believed that she was the person for the combined role.  Mr Toohey said that he would give her the opportunity and she should not let them down.  (Apparently the person in the comparable position with Odyssey was given another position.)

25. [25]
    The new position was Call Centre Manager, and included responsibility to manage the Odyssey Call Centre at Murrarie.  Eleven more people were operating the Odyssey Help Desk, seven days each week from 8.00 am until 3.00 am.  The Respondent operated its Help Desk from Monday to Friday from 8.30 am until 5.00 pm.  After hours was on a call roster.

26. [26]
    The employee's evidence was that the Call Centre Manager was a position higher than the ones nominated in the employment agreement dated 1 July 2009, and involved management rather than the supervisory work she had performed previously.  She did not enter a new employment contract in relation to that position and was not given an increase in salary, but retained a work car, which she had since 2006 due to her travel requirements. 

27. [27]
    In about January 2012, the employee's office moved from eBet's premises at Morningside to the Odyssey office in Murrarie.  All eBet staff were involved.  To accommodate that move, some Odyssey staff moved to the eBet Morningside office. 

 The employee’s concerns about her employment

28. [28]
    By late 2012, the employee developed concerns about the way she was perceived and treated in the workplace and about the security of her position as Call Centre Manager.

29. [29]
    As some context to the way in which the employee perceived her treatment by the Respondent, it is appropriate to note the way in which her performance was assessed, and feedback provided to her, before and after the integration of Odyssey and eBet.  The employee contrasted the nature and outcomes of performance reviews before the integration with the way in which her performance was assessed subsequently.  Indeed it was part of the employee's complaint that the formal procedure that she was used to had not been embarked on after the integration, and that she had not been advised of a different approach to assessing her performance.

30. [30]
    Positive performance reviews occurred in relation to the employee's work in positions as a Software Support Analyst between January 2006 and June 2008, and then in April to May 2011 as Team Leader CLUBline & Compass and Queensland Office Manager.  In the latter role, her performance review gave a KPO weighting of 10 per cent to managing the Queensland office and 10 per cent to leading and mentoring help desk team members. The employee gave evidence that, in practice, management of the team was more significant than those weightings suggest.  However, it appears that most of the work was not directly related to management.  Her manager, Sue Hopkins, described the employee as providing "fantastic support" to her, keeping her informed of issues and outcomes for the Brisbane help desks and their staff to a point where Ms Hopkins was confident that the occasional visit from her was sufficient.  Ms Hopkins also wrote:

"With the potential of acquiring Odyssey Gaming, Kasey is aware that there could be many more challenges in the year ahead, and I am confident she will tackle any new challenge with her usual enthusiasm and professionalism."  (Exhibit 7)

31. [31]
    Despite that prediction, it is not possible to compare directly the generally positive assessments made in those documents with the assessment made by the incoming management of the employee's different and expanded managerial role as Call Centre Manager.  Subsequent assessments by the Respondent's senior managers were made on an informal, rather than formally documented, basis.  However there was evidence that some concerns were raised and feedback was given in relation to the employee's performance of her management role in the course of operational meetings and some email correspondence.

32. [32]
    The issue of the employee's suitability for an ongoing management position in the joint Call Centre came to a head when it was clear that there was to be some reorganisation of management.  Although the evidence was not entirely clear, it appears from Stuart Radford's evidence that decisions about the employee's position had been taken in about December 2012 and certainly by January 2013.  Mr Radford was the Group Services Manager at Odyssey Gaming Services.  He joined the company in October 2012 and had an important role in the management and restructuring of the operations.

33. [33]
    The employee became aware that her position was under review when she received a Call Centre Report for December 2012 from Mr Radford.  The Action Plan included "Review Call Centre Manager position."  The relevant action was "Review roles and responsibility and review current manager", to be completed by 1 March 2013.  The status of that strategy was "In progress."  Mr Radford gave evidence that it was inadvertent error on his behalf to disclose that information to the employee.

34. [34]
    In her first affidavit, the employee stated that she did not know what to do when she read this but decided to leave it and get on with her job.  She had not had any performance reviews with Mr Radford.  However, the employee stated that in November 2012 she felt that she was being placed "on the outer," and gave examples of actions in the workplace which caused her to think that.

35. [35]
    On 15 January 2013, the employee met with Mr Radford to discuss her concerns, which she set out on a typed and handwritten list.  By her account (most of which Mr Radford agreed), the meeting went for about 30 minutes.  Among other things, Mr Radford indicated that the employee could not do the job as Call Centre Manager and management were not happy with her work.  He indicated that she was being demoted to the CLUBline Support Operator position. Andrea Asanuma was to become the Call Centre Supervisor and Sara Addison would come into the employee's role as Call Centre Manager when she returned from maternity leave.  Apparently the employee had some problems with both those women from Odyssey who she thought were undermining her.

36. [36]
    Mr Radford indicated that the employee could take on the role assigned to her or resign.  There was some discussion about whether the employee would be entitled to a redundancy as the employee thought that what was proposed sounded like a restructure.  Mr Radford indicated that he would check with the HR department.  That afternoon he sent an email to the employee headed "Reassignment of Position" which stated:

"I must apologise but I have been advised that Redundancy is not an option with regards the conversation we have had this afternoon.

You will be offered the position of Clubline Support Operator.  If you choose not to take the option then unfortunately resignation is the other option."

37. [37]
    That night, the employee sent an email to the Respondent's CEO, Mr Toohey, summarising the contents of her meeting that day with Mr Radford, referring to her performance as an employee loyal to the company for eight years, referring to some recent events and her concerns that she had been "under constant attack" from Mark (Anderson), Sara (Addison) and Stephen (Radford) "who undermined me within my role".  Mr Anderson, is the General Manager of Odyssey Gaming Services based in Brisbane. 

38. [38]
    The email concluded:

"Tony in closing I welcome the opportunity to discuss this matter with you, as you are no doubt aware natural justice nor due diligence has not been followed.

I look forward to having the opportunity to discuss the issues contained within this email and the chance to have an open discussion in relation to the operational issues that have been occurring due to politics and the underlying current within the Brisbane office."

39. [39]
    The employee had met previously with Mr Toohey on at least two occasions, in early February 2008 and October 2011.  In response to her email request, Mr Toohey spoke with the employee by telephone on 31 January 2013.  The employee recorded the conversation.  Both the sound recording of most of the conversation (Exhibit 8) and an unofficial transcript (Exhibit 3, KH22) were in evidence.  The conversation went for about 16 minutes.

40. [40]
    The conversation was conducted by Mr Toohey at a moderate pace and in a calm and business-like manner.  During that conversation Mr Toohey expressed frankly the expectations of eBet senior management in relation to the operations of the business and their implications for some employees.  He said:

"I was expecting, whether it was communicated to you or not, I was expecting that we at eBet in senior management would be seeing monumental changes in procedure, policy, outcomes, measurements and deliverables from the Odyssey Call Centre team collective.  And I don't believe that's happened.  And the real question we are asking ourselves is do we have the right people in the right position?"

41. [41]
    He outlined changes to personnel that had been made, including moving on some existing staff and bringing in Mr Radford and Mr Anderson to "get the deliverables that I'm looking for" and that did not exist at that stage in the business.  He explained that Mr Radford had a clear objective to deliver on and there would be consequences of him not delivering.  Mr Radford was "a man in a rush" because both he and Mr Anderson had some specific timelines to meet.

42. [42]
    Mr Toohey said:

"We're a far bigger company, Kasey, and the requirements of our environment and our customers are now a lot higher.  …  Unless you can provide me with documentation to say this is, this is the path that Kasey was setting the agenda setting for the Call Centre Team up, the Call Centre and Support team up in Queensland.  And this is what you were doing to create the best call centre in Queensland and the best services support environment in Queensland.  And you can provide that documentation to me, and that, that's various procedures and policies, these standards, measurement tools, all those types of things.  And if you can provide that to me, because if they exist you'd be able to email all that to me today.  If they don't exist … either in full or partial then I would say that the desired outcomes that we are looking for from a call centre manager being yourself is not being delivered at all.  …  I believe that what we were getting as opposed to what we want are two completely different things."

43. [43]
    Mr Toohey expressed the view that with the combination of companies there were "a lot of managers which actually should be supervisors," and that the employee fell into the supervisor category.  He explained his understanding of the difference between those two categories.

44. [44]
    Mr Toohey suggested that the employee needed to think about whether she could deliver on what the companies' expectations are, and whether she had started delivering on those expectations.  He also asked whether, if she could deliver on those expectations, why she had not already started.  If she had not started, were the expectations beyond her capacity?

45. [45]
    Mr Toohey asked the employee what she would send him if he asked her to send everything she had implemented since she had been the Call Centre Manager.  After the employee listed some procedures and training for staff, she was asked whether she had achieved what she had set out to do.  She replied "Well not fully, no."  When asked whether she had been making progress reports to management about what was going on, she replied "Probably not."

46. [46]
    Mr Toohey suggested that, whether she liked it or not, the employee was probably starting to see how "we've come to some conclusions."  But he said that "all is not lost."  The employee could:

1. (a)
   think about fighting for her position (in the sense that she could give Mr Toohey, Mr Radford and Mr Anderson reasons why she should retain her position, i.e., why Mr Radford should "potentially give you another go" and why the company "should afford you the opportunity and what is the return on our investment"); or

2. (b)
   "just take it on the chin and be accepting of what has been delivered unto you." 

 He stated that "there is nothing personal about this it is purely commercial."

47. [47]
    In the course of the conversation, the employee said that she thought the way things were being done had not been appropriate.  Mr Toohey responded by saying "when you're the victim it is never going to be appropriate.  When your [sic] being part of the casualty Kasey there's never a right way.…  Could have it had been handled better?  That is something I have to sit down with Steve and have a review."  He distinguished between the outcome and how the issue was handled and suggested that the employee needed "to come to grips with that."

48. [48]
    Mr Toohey said that he was going to the UK for work and would be returning around 11 or 12 February 2013.  He said "There in lies your opportunity" to present an argument why eBet/Odyssey should "reconsider their decisions" or to identify other things that the employee could do to the company where she would "best fit."  He concluded, "I'll leave in in your hands."  The employee replied "All right.  Thanks Tony."

49. [49]
    The employee did not offer any substantive responses during the conversation other than the one mentioned earlier, and did not send any documents to Mr Toohey after the conversation.  In effect, the employee did not take up the invitation to convince senior managers that she had the management skills to match their expectations and aspirations for that part of the Respondent's operations.  She offered some explanation of her lack of response, but the fact is that any opportunity for her to satisfy the CEO that she could perform the management role was not taken.

50. [50]
    Whatever time might have been available to the employee to act following Mr Toohey's telephone call effectively ended soon after as a result of actions taken by Mr Radford.

51. [51]
    On Friday 1 February 2013, the employee went to work at the Morningside office.  Mr Radford told her that he knew that she had spoken to Mr Toohey.  Mr Radford told her that the restructure would go ahead in April, which coincided with Sara Addison coming back from maternity leave and taking up the employee's current position.  By the employee's account, Mr Radford also told the employee that she should only work on "Clubline Compass stuff".  She assumed he meant that she was only to do CLUBline and Compass support which would entail customer phone calls and trouble shooting.

52. [52]
    On Monday 4 February 2013 the employee went to work.  At 8.02 am Mr Radford sent to nine people an email titled "Restructure - Call Centre."  This email stated:

"Management have reviewed the current structure of the Call Centre and after a lengthy review in alignment with the rest of the business - the following re-structure will be implemented immediately.

Call Centre manager - Sara Addison (Sara will return from Maternity leave on 01 April 2013)

Call Centre Supervisor - Andrea Asanuma

The focus of the Call Centre will be escalated to improve Customer and Product Support for all Queensland products as well as Compass/Clubline requirements across Queensland and New South Wales.  I will be responsible for the Call Centre until Sara returns from Leave.

Kasey will be taking up a role as Clubline support with the Compass/Clubline team due to her long term experience of the product.

If there are any queries please do not hesitate to contact me directly."  (Exhibit 3 KH23)

53. [53]
    According to the employee's first affidavit, "For the rest of this day I felt very uncomfortable, isolated and felt people talking behind my back.  I am not sure what I ended up doing for the rest of that day.  I may have started packing things up in my part of the office."  (Exhibit 3 para 110) In her oral evidence, the employee said that no staff came near her all day.  She explained that the things referred to in her affidavit were work items, including files, to give to Andrea Asanuma as she was to be the Call Centre Supervisor immediately.

54. [54]
    The employee went on sick leave from Tuesday 5 February 2013.  She did not return to work for the Respondent.

55. [55]
    Early in the morning of Wednesday 6 February 2013, Mr Radford sent an email to the employee to make sure she was included in the standby roster for Compass/CLUBline.  This was an after hours roster.  It meant that she had to be available from 5.00 pm to 11.00 pm every night for a seven day period.  Mr Radford also stated that he would like the employee to relocate from her office area into the "pit area" to support the team (Exhibit 3 KH25).  The employee assumed that Mr Radford meant her to move to the Call Centre, which was located at Murrarie just outside her office.

56. [56]
    The evidence suggests that the Respondent and the employee may not have shared the same understanding of what the employee was being assigned to do, or at last the precise contractual and workload implications of what was proposed.

57. [57]
    For example, according to Mr Anderson's oral evidence, the intention was to move the employee back to her position under the 1 July 2009 employment agreement, with the same responsibilities and pay.  He thought that she would have had the same role managing the CLUBline Support Call Centre as when she left that position.  However, he agreed that the position of CLUBline Support Operator was different.  In his affidavit (Exhibit 9), Mr Anderson stated that he was familiar with the employee's 2009 employment agreement.  He referred to Schedule C of that agreement and stated that of the 15 listed responsibilities only the first two are duties which are references to an Office Manager.  The remainder are duties relevant to the employee's role as Team Leader CLUBline Software Support and providing support for another eBet product called Compass.  He stated that this is indicative of the fact that managerial and supervisory duties were only a minor part of the employee's role. (The employee disagreed that her managerial and supervisory duties were "minor" in respect of her responsibility,  but agreed that they took a minor part of her time: see Exhibit 4.)

58. [58]
    Mr Anderson also stated that the merger meant that eBet would no longer need a Queensland Office Manager, and that the employee would continue with her CLUBline Support Operator duties within the merged Call Centre.

59. [59]
    Mr Radford, who had used the term "demotion" in discussion with the employee and in an email to Mr Anderson on 15 January 2013, also said that the employee would have gone to her previous role of CLUBline Support or Compass CLUBline Support Supervisor, although he was not aware of her previous position under a contract to which he had not been privy.  In his affidavit, however, Mr Radford stated that the employee "was not being demoted.  Rather she was being returned to her original position which she occupied prior to been [sic] given the opportunity to try the Brisbane Call Centre Manager role" (Exhibit 10).  There were no other positions in the business of which he was aware that would be suitable for the employee other than in CLUBline Support.

60. [60]
    The Applicant does not contend that the employee was entitled to retain the position of Call Centre Manager.  Indeed the Applicant submits that there would be no argument if the reassignment was to precisely the position set out in the 2009 employment agreement.  The employee essentially accepts that the position of Call Centre Manager was a temporary position and the Respondent was entitled to put her back to the position that she enjoyed under that contract.  But, the Applicant submits, the Respondent went much further and demoted her.  It was their intention to return her to the position she held in 2005, not the position she held when she signed her most recent employment contract.

61. [61]
    The employee's evidence was that the position of CLUBline Support Operator is a lower position than those for which she was engaged under that employment agreement (and would not require her to have any of the management responsibilities listed in Schedule C of that agreement), and that she did not agree (in writing or otherwise) to have her employment agreement changed or modified in that way.  The employee understood the CLUBline Support position was the same as the Help Desk Support Operator position that she held when she started with Bounty Ltd in 2005.  In that role she did not have any supervisory or management responsibilities or report writing responsibilities. 

62. [62]
    In the absence of a written employment agreement setting out the role and responsibilities of the employee in the proposed position, it is difficult to determine precisely whether the practical effect of the proposed reassignment would have been as the employee characterised it, or whether it might have been closer to the description in the employment agreement of 1 July 2009.  However, given the reference to "Clubline support with the Compass/Clubline team" in the email of 4 February 2013 (and similar descriptions in associated conversations with the employee), the evidence of Mr Anderson and Mr Radford about what the Respondent intended, and the clear understanding of the different roles known to and experienced by the employee, I am satisfied that it was reasonable for her to conclude that the position to which she was assigned was less than the positions under the 2009 employment agreement.  In any case, it was clear that the position to which the employee was reassigned would not include the equivalent of the Queensland Office Manager role.

The employee’s illness in 2013

63. [63]
    The evidence of the employee’s illness or incapacity during the period from 5 February 2013 until her resignation on 14 April 2013, and beyond is summarised below.

64. [64]
    On Tuesday 5 February 2013, the employee consulted Dr Aras Annadi at Smart Clinics, Chermside.  Having examined the employee, Dr Annadi signed a medical certificate expressing the opinion that she was “suffering from a medical condition and will be unfit for work” from 5 February to 8 February 2013 (inclusive) (Exhibit 3 KH24A).  The employee sent the certificate by email to Mr Radford on 6 February 2013 with the message "Unfortunately I am unable to attend work for the remainder of the week.  I have attached a doctor's certificate and will fill in a sick form when I return or Monday" (Exhibit 3 KH24B).

65. [65]
    On Sunday 10 February 2013, the employee consulted Dr Ian Walsh at Smart Clinics.  Having examined the employee, Dr Walsh signed a medical certificate expressing the opinion that she was “suffering from a medical condition and will be unfit for work” from 10 February to 24 February 2013 (inclusive)  (Exhibit 3 KH26A). The employee sent the certificate by email to Mr Radford with the message "Attached is my sick certificate for the next two weeks" (Exhibit 3 KH26B).

66. [66]
    There is no documentary evidence for the following week, but there was no contest that the employee was away from work on sick leave during that week.

67. [67]
    On Sunday 3 March 2013, the employee again consulted Dr Walsh.  Having examined the employee, Dr Walsh signed a medical certificate expressing the opinion that she was “suffering from a medical condition and will be unfit for work” from 3 March to 17 March 2013 (inclusive) (Exhibit 3 KH27).

68. [68]
    The employee was on annual leave from 18 to 31 March 2013.  She had applied for this leave in about August or September 2012.  The employee maintains that she was still sick during the period of annual leave, but did not recall being examined by a doctor during that period.  In any case, it was not necessary to obtain a medical certificate to explain her absence from work in that period.

69. [69]
    On Monday 1 April 2013, the employee consulted Dr Paul Harris at Smart Clinics.  Having examined her, Dr Harris signed a medical certificate expressing the opinion that she was “suffering from a medical condition and will be unfit for work” from 1 April to 8 April 2013 (inclusive) (Exhibit 3 KH28).  According to the employee, Dr Harris provided a medical certificate for one week because he was not her regular doctor and he suggested that she see Dr Walsh at the end of that period.

70. [70]
    On Sunday 7 April 2013, the employee again consulted Dr Walsh.  Having examined her, Dr Walsh signed a medical certificate expressing the opinion that she was “suffering from a medical condition and will be unfit for work due to associated mood dysfunction” from 7 April to 5 May 2013 (inclusive).  (Exhibit 3 KH29 - emphasis added)

71. [71]
    The employee said that she sent each medical certificate by fax to Mr Radford on the day/next day after it was signed with a covering email.  Although some emails were in evidence, the employee did not have a copy of emails in relation to the certificates of 3 March and 1 and 7 April 2013.

72. [72]
    In her affidavit, the employee stated that, while on sick leave, "I felt my health going downhill.  Every time I thought about returning to work I'd become anxious and uptight.  I experienced uncontrolled shaking and crying along with weight gain."  When she consulted Dr Walsh he spoke to her about anti-depressants.  She first started taking them around March 2013 and was still taking a daily dose of one tablet, at least up until the date of the affidavit, 16 January 2014.

73. [73]
    In her oral evidence, the employee said that she was "a mess" in the period after 4 February 2013, being "very confused and upset" and "very stressed."

74. [74]
    The employee continued:

"I think I came to the realisation that I couldn't go back to my workplace a couple of weeks before I actually tendered by resignation.  I felt that I could not go back because of the stress and the way I was feeling.  I believe this was the result of what happened at work, how I was treated and being put back into my initial role.  I had worked hard to get where I was and dedicated over 8 years of my life to Bounty then Tattersall's and now EBET LTD. Prior to all this I was not a depressed person and I had not been taking any medication."  (Exhibit 3 para 130)

75. [75]
    On Sunday 14 April 2013, Dr Walsh signed a letter addressed “To whom it may concern” stating in relation to the employee:

“The patient continues to suffer from an ongoing medical condition that precludes her from returning to work from this date forthwith.

I am happy to be contacted if further information is required regarding this matter.”  (Exhibit 3 KH31)

76. [76]
    Dr Walsh also signed a letter dated 21 April 2013 addressed "To whom it may concern" in which he stated that the employee:

"continues to suffer from an ongoing medical condition (major depressive episode) that precludes her from returning to work from this date forthwith.  She has commenced taking medication but, despite this, remains unfit for ongoing duties, due to inherent problems in the workplace.  I am happy to be contacted if further information is required regarding this matter."  (Exhibit 3 KH 33)

77. [77]
    In summary, as at 14 April 2013 the employee was suffering from stress and associated mood dysfunction, a condition described as a major depressive episode, and was taking anti-depressant medication.

The employee's illness and s 43(4)(b)(i) - applicable legal principles

78. [78]
    In order to succeed under s 43(4)(b)(i) it is necessary to establish that the employee terminated her service “because of” her illness or incapacity.

79. [79]
    In support of their submissions about the relevant legal principles and how they should be applied in this case, each party referred to or relied on decisions in other cases including Department of Employment and Industrial Relations AND Sandoz Pty Ltd ("Sandoz"),^[1] AWU AND Sunshine Coast Hospital ("Sunshine Coast Hospital"),^[2] Scott Mountford AND North Sheridan Pty Ltd ("Mountford"),^[3] F.G. Holder v AVCO Financial Services Ltd,^[4] Inspector G. Newbold v Austin & Anor t/a Homeway Real Estate,^[5] and Franks v Kembla Equipment Co.^[6]

80. [80]
    Each case turned on its own facts.  The circumstances in some (e.g. Sandoz) are clearly distinguishable from the present case, and some cases involved the application of legislation in another jurisdiction.  The main benefit to be gained from those decisions for present purposes is that they contain propositions about the way to interpret and apply s 43(4)(b)(i).

81. [81]
    Mr Mossman cautioned about relying on decisions from other jurisdictions that were made by reference to different legislation.  However, as Asbury C noted in the Sunshine Coast Hospital case, the relevant provisions of the New South Wales legislation are virtually identical to those of the Queensland legislation.  Also, the First Reading Speech given by the Minister for Industrial Relations in relation to the relevant amendment of the Act included the following passage:

"This provision will bring Queensland into line with a number of other jurisdictions that provide earlier access to pro rata payment on termination on a conditional basis.

The question of what constitutes illness, incapacity, domestic or other pressing necessity of such a nature to justify a termination, is a matter to determine on the facts of each case.  If the parties are unable to agree on whether an employee who terminates between 7 and 10 years' continuous service is entitled to a proportionate payment on these grounds, this will be a matter for the QIRC to determine.  This is the practice in New South Wales, for example, where these questions of interpretation are determined on a case-by-case basis." 

82. [82]
    Given the reference to the New South Wales jurisdiction in the Minister's speech in relation to the amendments to the Queensland legislation, and the almost identical terms of the Queensland and New South Wales provisions, Asbury C considered it appropriate for the Commission to have regard to decisions of the New South Wales Industrial Relations Commission in determining cases under the Queensland legislation.  I agree with that approach.  As it happens, the decisions on which I have relied primarily for the relevant propositions are decisions of the Commission; but they in turn refer to New South Wales decisions.

83. [83]
    The propositions relevant to this case include:

1. (a)
   "illness" as used in s 43(4)(b) should not be given a narrow meaning and can, in an appropriate case, include "stress" and the physical manifestations of that stress;^[7]

2. (b)
   the fact that an employee was suffering from an illness at the time of his or her resignation is not determinative of whether an entitlement to proportionate long service leave arises under s 43(4) of the Act; rather the Applicant must satisfy the Commission on the balance of probabilities that the employee terminated his or her service "because of" his or her illness, i.e., their illness caused them to terminate their employment;^[8]

3. (c)
   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;^[9]

4. (d)
   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 his or her employment;^[10]

5. (e)
   it is not necessary to find that the illness must necessitate the termination of employment, or that it must be unlikely that the employee would return to the workforce; rather it is sufficient that the illness caused the termination of the employee's employment;^[11]

6. (f)
   the test is not subjective (in the sense that the employee's view is to prevail) and the real question is whether a reasonable person would have terminated his or her employment in the same circumstances.^[12]

84. [84]
    In the Sunshine Coast Hospital case, Asbury C listed the following questions (derived substantially from previous New South Wales decisions) as relevant to determining whether an employee has an entitlement to proportionate payment for long service leave under s 43(4) of the Act:^[13]

1. (a)
   Was the reason for the termination one which fell within the section?

2. (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?

3. (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?

4. (d)
   Did the reason claimed cause the employee to terminate his or her employment?

5. (e)
   Did the reason claimed affect the employee in relation to the particular service he or she terminated?

6. (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?

Asbury C also expressed the view that a claimant should provide clear evidence to the Commission to enable the questions posed to be answered in the affirmative.  In this regard, she noted that the opening words of s 43(4) state that an employee is entitled to proportionate payment for long service leave under that section "only if" the contingencies set out therein are met.^[14]

85. [85]
    I agree with Fisher C who described the questions posed by Asbury C as providing a "useful guide to determining such applications" without being binding or necessarily applicable in all cases.^[15]  The critical questions are whether the reason for the termination, i.e. stress, was genuine and whether it was the real and motivating factor that caused the employee to terminate her employment.

The employee’s illness - assessing the evidence by reference to s 43(4)(b)(i)

86. [86]
    Evidence of the employee’s illness or incapacity during the period from early February 2013 until her resignation on 14 April 2013, and beyond, is summarised earlier in these reasons for decision. Mr Mossman for the Respondent stated clearly in his final submissions that there is no contest that the employee may have suffered from an illness.  The issue is whether that illness motivated her to resign.

87. [87]
    On Sunday 14 April 2013, Dr Walsh signed a letter addressed “To whom it may concern” stating in relation to the employee:

“The patient continues to suffer from an ongoing medical condition that precludes her from returning to work from this date forthwith.

I am happy to be contacted if further information is required regarding this matter.”  (Exhibit 3 KH31)

88. [88]
    The letter was attached to the employee’s letter of resignation, also dated 14 April 2013, addressed to Mr Radford.  The letter of resignation stated, in part:

“It is with regret that I submit my resignation with EBET.  As per your email dated 15th January 2013 I was either to accept the position of Clubline Support Operator which encompasses a major change of duties or resign.  As per my contract I am required to give four weeks’ notice, but due to an ongoing medical condition I will be unable to fulfil this.  Please find attached a letter from my medical practitioner advising that I will be unable to return to work.

Due to the nature of my resignation the Industrial Relations Act 1999, (QLD) stipulates that if an “employee terminates their employment because of illness or incapacity or because of a domestic or other pressing necessity” that long service leave must be paid to an employee if seven years or more of service is accrued.”  (Exhibit 3 KH30)

89. [89]
    The Respondent's position was set out in an email from Mr Anderson to the employee in response to her letter of resignation.  He wrote:

"As you have correctly pointed out, pro rata long service leave must be paid where an employee resigns because of any injury or illness.  However, you state in the first paragraph of your letter that the reason for your resignation is because of the potential changes to the duties of your position.

Accordingly, we are not satisfied that the real and genuine reason for your resignation is because of your illness.  In those circumstances, pro rata long service leave will not be paid." (Exhibit 3 KH32)

90. [90]
    It is clear from the employee's evidence that she had a number of grievances at the time of, and immediately before, her departure from her workplace.  Her grievances included feeling undermined as Brisbane Call Centre Manager by former Odyssey staff, feeling that she was being placed on the outer or pushed to the side (e.g. by being excluded from meetings), apparent exclusion from the December 2012 management Christmas party (although she accepted an email invitation to a staff Christmas party that year), a lack of trust from Mr Radford in relation to her duties as Call Centre Manager, Mr Radford's request for an overview of the Call Centre and his criticism of her reply, and not being treated fairly in relation to both the process leading to the decision about her future employment and that decision.  She had prepared a list of grievances to discuss with Mr Radford, and had done so on 15 January 2013.  She raised some of her concerns with Mr Toohey on 31 January 2013.

91. [91]
    In her oral evidence, the employee said that there were "multiple things involved" in why she decided to resign.  It is clear that she was not in fear of her employment being in jeopardy, that is, she did not have any fear about being dismissed.  However, she considered that she had been given an ultimatum to either take the new role or leave.  She was concerned about being put back into a role she did not believe she should have been given, and where she would be reporting to people including one who had previously been subordinate to her.  In her words, "I would not have gone back to eBet if I had to do the CLUBline support operator role." 

92. [92]
    Although she wanted to keep the managerial position and did not want to go to an operational position with a non-supervisory aspect to it, the employee insisted that that was not the reason she resigned.  Rather she resigned "because of what happened to me on a personal basis" and stated that the "main reason for resigning in the end was because I was unable to go back to the work due to my … medical issue that I was suffering."  She also stated that "I resigned due [to] my medical condition.  That was the main reason and, yes, I said I wouldn't have returned if I had to go to that role."  Her medical condition was her "number 1 priority" and, although she appeared to concede that not wanting to perform the CLUBline support role had some bearing on her decision, her medical condition was the "main reason for resigning."

93. [93]
    In her first affidavit, the employee stated:

"I understand that it sounds like I was resigning just because I did not want to take the Clubline Support Operator position but it was not just that.  It was because the whole episode and how I was being treated caused my medical condition and I felt that I could just not go back to such an environment."  (Exhibit 3 para 138)

94. [94]
    In that affidavit, the employee also stated that she resigned “because of the whole episode and how I was being treated caused my medical condition and I felt that I could just not go back to such an environment”.  (Exhibit 3 para 138)

95. [95]
    At the hearing, the employee was cross-examined closely about when she made her decision to resign.  She maintained that she did not decide to resign after the conversation with Mr Toohey on 31 January 2013 or immediately or soon after the emails from Mr Radford in early February 2013.  She confirmed that she made the decision a couple of weeks before her letter of resignation. 

96. [96]
    Although the employee said that she discussed her medical condition with Dr Walsh and "it was decided it was best that I wouldn't be able to return to work due to that," and she discussed with her doctor things such as payment of long service leave, it was not clear when the conversation or conversations occurred.  She could not recall her full conversation with Dr Walsh on 7 April 2013 or 14 April 2013.  Nor was it entirely clear from the employee's recollection whether it was she or Dr Walsh who first suggested that she resign.

97. [97]
    According to the employee, she attended the clinic on 14 April 2013 and obtained the certificate from Dr Walsh that day.  She gave evidence that she would have discussed her condition and how she was feeling, and that she had decided to resign in her best interests.  However, she did not agree that she received advice from her doctor on 14 April 2013 that it was in her best interests to resign.  Rather, the doctors she had seen over that period since February 2013 had suggested that she should find a new job. 

98. [98]
    When it was put to the employee that her decision to resign on or about 1 April 2013 must have been made before she received the diagnosis of Dr Walsh that she had an ongoing medical condition that would preclude her from going to work, she replied:

"I don't know how to explain it.  Obviously I had a medical condition, so it was obviously an ongoing medical condition, which is why I kept going back to see the doctor.  So obviously then I discussed with the doctor and he has decided due to my ongoing medical condition, that's why I wouldn't be returning to work."  (T/s 1: 94)

99. [99]
    Issues about expert medical evidence: Before assessing that evidence in light of applicable legal principles, I need to consider the implications of the absence of any oral evidence from a doctor or a detailed medical report in support of the application.  Given the issues outlined in relation to whether s 43(4)(b)(i) applies in this case, it would have been useful to have heard from Dr Walsh about such things as the nature of the employee's symptoms, the extent to which her depressive illness could be related to her employment, the circumstances in which she decided to resign, whether he knew when she made that decision, and whether that decision was based primarily on her medical condition.

100. [100]
     Mr Waltham for the Applicant submitted that:

1. (a)
   the Commission can draw relevant inferences in exercising its power under s 320 of the Act, which provides, among other things, that the Commission is not bound by rules of evidence; and

2. (b)
   in reliance on s 92(2)(f) of the Evidence Act 1977, it was not necessary to call Dr Walsh as a witness because "undue expense" would be incurred in doing so.

101. [101]
     In relation to the latter submission, I note that s 92(2)(f) of the Evidence Act 1977 provides that the maker of a statement or the person who supplied information need not be called as a witness where "it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling" that person as a witness.  As Mr Mossman correctly observed, there was no evidence other than brief submissions from the bar table as to why it was unduly inconvenient or costly or burdensome to call doctors who conduct their practices in Chermside in Brisbane.  Accordingly I give no weight to that part of Mr Waltham's submission.

102. [102]
     Mr Waltham also referred to two decisions of the Chief Industrial Magistrate's Court of New South Wales to the effect that, while the evidence of an applicant can be supported by a medical certificate,^[16] that is not necessary.  Indeed, in Inspector Newbold v Austin & Anor t/a Homeway Real Estate^[17] in Chief Industrial Magistrate Miller wrote:

"It is not necessary for a worker to present all medical evidence when tendering a resignation or even at the point of termination.  Nor is it necessary to produce a doctor's certificate stating that the worker must terminate on account of illness.  In many cases the long service leave is paid when a worker states that he is leaving because of medical reasons."

103. [103]
     Decisions in relation to some of the other cases referred to by the parties indicate variations in the nature and extent of medical evidence on which applicants have relied.  In some instances, it appears that the evidence of a doctor who has seen the employee on relatively few occasions and who is not a specialist can be sufficient to convince the Commission of the Applicant's case.^[18]

104. [104]
     Further, Mr Waltham submitted, there is ample evidence before the Commission upon which the Commission could be satisfied that the employee was suffering from this illness which required her to terminate her employment.  The Respondent had conceded that there was no contest that the employee was suffering from an illness.

105. [105]
     Mr Mossman for the Respondent submitted that there are issues with the evidence about the employee's medical condition at the relevant date.  No doctor was called to give evidence and there was only documentary and verbal hearsay.  He suggested that the Commission could draw a Jones v Dunkel inference on the non-calling of doctors.

106. [106]
     Mr Mossman submitted that, even if the Commission is not bound by the rules of evidence, there needs to be some evidence.  Although there was no contest that the employee may have suffered from an injury or illness, whether that motivated her to resign is a different topic.  There is a legal distinction between having an illness and resigning because of it.  The employee decided to resign about 1 April 2013, some two weeks before she received the pivotal diagnosis of her condition and the impact upon her ability to go to her job.  There was no evidence from doctors about the impact of that in terms of whether she should resign or not or her ability to perform the job.  In his submission, we do not know what the medical diagnoses are from a satisfactory evidentiary point of view.

107. [107]
     Mr Mossman also noted that the medical certificate issued by Dr Walsh on 7 April 2013 specified that the employee would be unfit for work from 7 April to 5 May 2013 yet the letter dated 14 April 2013 (just one week later) referred to the employee suffering from "an ongoing medical condition" that precludes her from returning to work "from this date forthwith."  Dr Walsh was not called to give evidence and there is no other expert evidence to explain the apparent change in his opinion.

108. [108]
     I note, however, that in re-examination the employee gave evidence that in about March 2013 Dr Walsh had indicated that he believed she was suffering from depression, about the time when she started taking the anti-depressant medication referred to earlier.  Consequently, Dr Walsh's comments in the letters of 14 and 21 April 2013 did not come as surprise to her.  (T/s 1:98)

109. [109]
     There is some force in Mr Mossman's submissions, and I have already expressed the view that it would have been helpful to have additional medical evidence.  However, there is documentary evidence in the form of medical certificates and the two letters from Dr Walsh.  I am not willing to draw an adverse inference from the failure to call a doctor to give evidence.  It is necessary simply to proceed on the basis of the evidence before the Commission, drawing such inferences as are appropriate, to ascertain whether the Applicant has made good its case in relation to s 43(4)(b)(i) of the Act.  On that basis, I turn to the submissions in relation to the key issue.

110. [110]
     Whether the employee terminated her service because of her illness: The Applicant submits that the medically diagnosed illness from which the employee was suffering at the time was the primary reason for her ceasing her employment, and that was the reason that she stated in her letter of resignation as being the reason why she is entitled to her long service leave.  The employee annexed her final medical certificate dated 14 April 2013 which clearly states that she is suffering from an ongoing medical condition that precludes her from continuing to work from that date.  The employee felt stressed, isolated, undermined due to the way she had been treated in the workplace.  The Applicant submits that the Commission can draw an inference from that evidence that the employee was suffering from the illness since she started on sick leave on 5 February 2013, or at least from the start of March 2013 when she was diagnosed with antidepressants by Dr Walsh.

111. [111]
     In support of the Applicant's submissions, Mr Waltham relied on the decision of the Commission in the Sunshine Coast Hospital case and the decisions cited by Asbury C to the effect that a worker need not show that the illness necessitated the termination of his services; and if the illness be the cause of termination, it matters not whether another fact or facts affect the worker's consideration of the question of termination.  By reference to that decision and the evidence in this case, the Applicant submits that a reasonable person in the position of the employee would be compelled to resolve the issue by terminating their employment.  All the employee needs to do is to show that she was ill at the point at which she formed her intention not to go back to work.  The appropriate date is 14 April 2013, when the employee went to the doctor and he gave her the certificate which confirmed that she is suffering from an ongoing illness that precluded her from returning to work.

112. [112]
     The Applicant also submits that:

1. (a)
   the question to come out of all the authorities is whether illness was the genuine motivating factor for the employee terminating her employment, and in this case clearly it is; and

2. (b)
   it does not matter if work gives rise to the injury, or if the basis for the illness was reasonable or not.

113. [113]
     The Applicant submits that this case is on all fours with Mountford's case, where the stress-related condition arose from the work pressures that the employee was put in, and was the real and motivating factor for the decision.  The present case is clearly distinguishable from the facts in Sandoz.

114. [114]
     The Respondent's submissions also referred to the Sandoz, Sunshine Coast Hospital and Mountford cases. 

115. [115]
     The Respondent submitted that illness must cause the termination of employment; it is not sufficient to be suffering from an illness at the time of resignation to be entitled to proportionate long service leave.  It appears from her letter of resignation and the factors cited in it that the employee's medical condition goes to her alleged entitlement to payment and was not the reason for her resignation.  There are issues with evidence about medical condition at relevant date (referred to earlier).  The employee decided to resign about 1 April, some two weeks before she obtained the pivotal diagnosis of her condition and the impact upon her ability to go to her job.  Whether that motivated her to resign is a different topic.  There was no evidence from doctors about the impact of that in terms of whether she should resign or not or her ability to perform the job.  There was a two week gap between decision to resign and writing the letter.  That letter should be treated with caution to the extent that it relies upon medical reasons as the reason for resignation.  The true reason is in the first paragraph - she did not want to go to the role assigned by the Respondent.  Indeed, the Respondent submitted, the employee would have resigned anyway because of the changes and particularly because she wanted the managerial role.

116. [116]
     In more general terms, the Respondent refers to the Mountford case in support of the proposition that what the employee puts in the letter of resignation is not determinative of the reason for her resigning.  There may be multiple factors.  The Commission must decide what the major reason was after considering all the evidence.  If the major reason why the employee left does not fit within the entitlement provision of s 43 then that can be the end of the enquiry.

117. [117]
     Consideration and conclusion: Although the letter of resignation might be read in the way suggested by the Respondent, I am satisfied that it can and should be read as indicating that the employee would not and could not return to work because of her "medical condition."  In other words, I am satisfied that the reference to that medical condition was not only the explanation of why the employee could not work out the four week notice period but was also the explanation for her resignation.  I have reached that conclusion having regard to the evidence as a whole, including the oral and affidavit evidence of the employee (particularly her evidence about the nature and cause of her stress, and the reasons for her decision to terminate her employment), the medical certificates (particularly the medical certificate of Dr Walsh dated 7 April 2013 and his letters of 14 and 21 April 2013), and the reference in the letter of resignation to the provision of the Act referring to termination of employment "because of illness".

118. [118]
     Having considered the evidence and applicable legal principles, I conclude that: 

1. (a)
   from as early as 5 February 2013, the employee was suffering from stress which became more serious over time and which, being described by her doctor as an associated mood dysfunction and a major depressive episode, constitutes an illness for the purpose of s 43(4)(b)(i) of the Act;

2. (b)
   the illness was directly related to and prompted by the employee's circumstances at work, including her relationships with some other employees and managers and the way in which her proposed future employment by the Respondent had been managed;

3. (c)
   although her illness was not the sole ground which caused the employee to make the decision to terminate her employment, it was the real or motivating reason; in other words, her illness caused her to terminate her employment; and

4. (d)
   the situation of the employee at the point of the termination was one which a reasonable person might have felt compelled to resolve by terminating their employment.

Accordingly, the application under s 278 of the Act succeeds by reference to s 43(4)(b)(i) of the Act.

The proper construction of s 43(4)(c)(i) and (ii)

119. [119]
     As noted earlier, s 43(4)(c) provides that if an employee’s service is terminated before the employee has completed 10 years of continuous service, the employee is entitled to a proportionate payment if the termination is because the employer:

1. (a)
   dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or

2. (b)
   unfairly dismisses the employee.

120. [120]
     Each party made submissions about the proper construction of s 43(4)(c)(i) and (ii).

121. [121]
     The Respondent submitted that, contrary to the approach taken in the application, subparagraphs (i) and (ii) must be read conjunctively not disjunctively.  In other words, it was submitted, the “or” between the two subparagraphs must be read and “and”.  Consequently, paragraph (c) provides one ground, not two.  In support of this submission, the Respondent referred to the decision of former President Hall in Cox v Photograve Pty Ltd,^[19] in which the issue of whether "or" is conjunctive or disjunctive was expressly not decided,  and the subsequent decision when the case was returned to Deputy President Bloomfield.^[20]

122. [122]
     The Applicant in reply submitted that subparagraphs (i) and (ii) must be read disjunctively not conjunctively and hence paragraph (c) provides two grounds, on either of which the application might succeed.  In support of that submission, the Applicant submits that there is no authority that says that the two grounds are to be read cumulatively.  Rather, it submits, they are to be read in the ordinary sense, so that "or" indicates that each paragraph is quite clearly separate from the other.  The drafter would not have intended the two grounds to be read together.  The distinction is illustrated by reference to other paragraphs in s 43, most of which are separated by "or," but (d)(i) and (ii) have "and."

123. [123]
     The Applicant also submits that payment can be justified under (c)(i) because a repudiation of the contract constitutes a constructive dismissal and therefore it constitutes a determination by the employer, dismissing the employee for a reason other than the employee's contract, capacity or performance.  So there is no need to go to the unfair dismissal ground under (c)(ii).

124. [124]
     Given my decision that the application succeeds by reference to s 43(4)(b)(i), I do not need to decide:

1. (a)
   whether s 43(4)(c) provides one ground or two for an application made in the circumstances of this case; or

2. (b)
   whether the present application would succeed by reference to s 43(4)(c).

Conclusion

125. [125]
     The application is successful by reference to s 43(4)(b)(i) of the Act.  Consequently, eBet Ltd is to pay Kasey Ann Hanson the sum of $9,961.43, being the amount of pro rata long service leave owed to her.

126. [126]
     Order accordingly.