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Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd[2017] QIRC 74

Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd[2017] QIRC 74

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2017] QIRC 074

PARTIES: 

Transport Workers' Union of Australia, Union of Employees (Queensland Branch)

(Applicant)

v

Linfox Australia Pty Ltd

(Respondent)

CASE NO:

B/2017/11

PROCEEDING:

Application for payment of pro rata long service leave

DELIVERED ON:

4 August 2017

HEARING DATE:

27 June 2017

HEARD AT:

Brisbane

MEMBER:

Deputy President Bloomfield

ORDER:

Application refused

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR UNPAID WAGES – Claim for pro rata long service leave – whether resignation was because of the employee's illness or incapacity – employee said to have resigned because of an undiagnosed mental health issue – cause of mental health issue was a relationship breakdown – meaning of "because of" considered – held that employee did not resign employment because of illness or incapacity – application refused

CASES:

Industrial Relations Act 2016, s 95, s 1024

Industrial Relations Act 1999, s 43

 

Australian Workers' Union of Employees, Queensland v Sunshine Coast Private Hospital (2003) 172 QGIG 1097

Gibbons v eBet Ltd [2015] QIRC 7

O'Keefe v Queensland Diagnostic Imaging Pty Ltd (2009) 192 QGIG 93

Hawkins v Torres Strait Island Regional Council (2009) 190 QGIG 151

Saxby, Department of Justice and Attorney-General v Southern Downs Security Pty Ltd [2010] QIRC 93

APPEARANCES:

Ms M Cerrato for the Transport Workers' Union of Australia, Union of Employees (Queensland Branch), the Applicant

Mr R Dalton for the Respondent

Decision

Introduction

  1. [1]
    On behalf of its Member, Mr Warren Scheidel, the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (TWUQ), has made an application to the Commission for an Order under s 475 of the Industrial Relations Act 2016 (the 2016 Act) which would require Linfox Australia Pty Ltd (Linfox) to pay pro rata long service leave to Mr Scheidel pursuant to s 95(4)(b)(i) of the 2016 Act. Although Linfox is covered by a federal award it is common ground between the parties that Mr Scheidel's long service leave entitlements are regulated by the 2016 Act. 
  1. [2]
    However, because the application relates to events which occurred prior to the commencement of the 2016 Act, s 1024 provides that the application is to be dealt with as if it had commenced under the Industrial Relations Act 1999 (the Act). 
  1. [3]
    Relevantly, s 43 of the Act provides as follows:

"43  Entitlement

…

  1. (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.
  1. (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) …

 (b) the employee terminates the service because of:

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

  (ii) a domestic or other pressing necessity; or

 …"

(my emphasis)

  1. [4]
    In support of its application that Mr Scheidel was entitled to pro rata long service leave in accordance with s 43(4)(b)(i) of the Act, TWUQ submitted:

"The former employee terminated his employment because of:

  • the employee's illness or incapacity;
  • Mr Scheidel was unfit to continue work and was incapacitated due to mental illness;
  • If Mr Scheidel had not been suffering from a mental illness he would have pursued options other than resigning from his employment;
  • Mr Scheidel provided a medical certificate to the Respondent dated 30 November 2016 confirming he was unfit for work;
  • Mr Scheidel's medical condition has been confirmed by an independent medical specialist."

Background to the Application

  1. [5]
    It was Mr Scheidel's evidence that he commenced employment with Linfox on 22 February 2007 and resigned his employment on Tuesday, 1 November 2016, effective Monday, 14 November 2016 - a period of just under nine years and nine months' service.  Mr Scheidel's resignation followed a relationship break-up on the previous weekend with his then girlfriend of over three years.  On the day prior to lodging his resignation he told his then manager, Mr Jeffrey Brown, of the break-up and canvassed the option of moving to Perth to work for Linfox.  After expressing his sorrow at the relationship break-up, Mr Brown indicated that he would ask a Mr Laurence Kishore (a National Manager, responsible for Linfox's contract with Arnotts) to look into work opportunities in Western Australia.
  1. [6]
    During the course of the day, Mr Kishore requested a copy of Mr Scheidel's resume and told him he was likely to receive a phone call from a supervisor with Linfox in Perth.  Later that evening, the supervisor called Mr Scheidel to make enquiries about when he would be available to commence work.  After Mr Scheidel told her that he could not provide an exact date - it could be between a week and up to two months - the supervisor told him that was too difficult to work with and he should give her a call when he arrived in Perth.
  1. [7]
    Mr Scheidel thought about the matter overnight and emailed Mr Brown, with a copy to Mr Kishore, Mr Hardy (see below) and another manager, at 10.30am on Tuesday, 1 November 2016 in the following terms:

"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."

  1. [8]
    Mr Scheidel worked out his two weeks' notice without incident and ceased employment with Linfox on 14 November 2016.
  1. [9]
    On 28 November 2016, Mr Scheidel telephoned Mr Blake Byrne, a Workplace Relations Officer with Linfox in Sydney, to request payment of his pro rata long service leave.  Mr Byrne's evidence was to the effect that during the course of that conversation Mr Scheidel provided the following reasons for his resignation:
  • "Following the break-up of my relationship with Catherine, I feel it's the ideal time to take a Road Trip across Australia."; and
  • "I don't see a career path within Linfox and I want to pursue my passion for photography and to start my own business."
  1. [10]
    Following receipt of this phone call, Mr Byrne reviewed Mr Scheidel's resignation letter, the terms of the Act and discussed the resignation with Mr Brown and his own manager, a Mr Jones.  Mr Byrne said that Mr Brown told him, inter alia, that Mr Scheidel was calm and content in his decision to leave Linfox and that they had explored alternative work opportunities within Linfox, including a position in Western Australia.  Mr Scheidel also worked out his notice period with no attendance issues, performing to his usual high standard, and was excited about pursuing his photography career and travelling across Australia.
  1. [11]
    After discussing the matter with Mr Jones, Mr Byrne decided that Mr Scheidel's resignation was to enact a "lifestyle change" and, as such, he was not entitled to pro rata long service leave.  On the following day, 29 November 2016, Mr Byrne called Mr Scheidel to inform him of that decision.  According to Mr Byrne, Mr Scheidel disputed Linfox's decision and requested the reason why he was not to be paid his long service leave.  After Mr Byrne told him that he did not meet the requirements of resigning on account of illness or incapacity or domestic or other pressing necessity, Mr Scheidel requested that his case be reviewed again.  Mr Byrne said he was happy to do that if Mr Scheidel could put his case in writing.
  1. [12]
    On the following day, 30 November 2016, Mr Scheidel sent Mr Byrne a reasonably lengthy email in the following terms (as per original text and grammar):

"I would like my claim for long service reviewed because I believe my reason for leaving was not explained by Jeffery Brown (DC Manager) correctly.  In fact I'm very disappointed in Linfox right now.

I had the worst news in my life when my now ex girlfriend told me she wasn't in love with me anymore.  At the time she had only just started taking some medicine for her anxiety problems which I always supported her with and also would like to say that from my point of view that the relationship was perfect.  We never once argued about anything and I was left wondering what I had done wrong for her not to feel love for me anymore.

Being that she had only just started on this medicine I said 'how about we give it time to see how you feel when the anxiety might change'.  During the following few weeks I left it be and was contemplating what I would do with my life without her.  She was my everything for over 3 years and I started seeing her shortly after divorcing with my ex-wife of over 3 years. 

When I brought up the friends zone thing again it was only confirmed that she still felt the same about it and that's when we decided to deal with it.  Break up and the activities involved like moving out and other thoughts that came to mind.

One of these thoughts I had was that this was an opportunity for myself to start my life over all new and pick myself up and move to a totally new location and start fresh with new surroundings, a new job and new friends.

It was not an easy decision to leave linfox.  A great company that I learned a lot from in my nine years and one month*.

…

I hope you can understand that I did explain what I wanted to do along the way until I found my new place to be in this big country.  That is to photograph as many nice places on my journey.  I did not quit solely for this reason though.  It should not matter what I chose to do after leaving linfox.  The fact is I made this decision to leave because of the relationship breakdown and had nothing left in my life to keep me afloat mentally and I felt that I would have fallen into a depressive state rather quickly unless something exciting came my way and fast.  That would only have become an issue at work if I took extended periods of time off.

So when I actually approached Jeffery about the news I had.  It was on the Monday after the weekend Catherine and I discussed our relationship.  I went into Jeff's office and let him know about it.  The fact that I was upset about it and didn't want to live my life the same anymore.  My first thought was to seek a transfer with linfox in a location in western Australia and see if linfox would help me get there by helping with fuel for the trip.  I didn't get much of a response in regards to helping me get there and was advised I would have an answer to my transfer request within about a week.

That Monday night I went home and looked at a budget on holiday wages and came to the point of surviving on around $340 a week to drive hundreds of kilometers every day requiring lots of fuel, eat food and drink every day, accommodation cost as well and setting up with somewhere to live when I arrived in Perth.

I could not see me accomplishing the trip with such little cash each week so I decided I would go into work and let them know I wasn't going to seek the transfer based on budget costs and that they didn't say yes to helping out with fuel.  I also stated that asking linfox to help me out was expecting to much from linfox and didn't want to proceed with such an activity either.

Please understand I would still be working there if Cath and I were still together.  It was a great job and I worked my way into responsible roles such as despatch and eventually inventory controller.  I would never have given that up to travel Australia with no savings.  That would be crazy.  I saw the potential for my leave entitlements and a way to survive for some time before finding my place elsewhere and creating a new life. 

…

I will follow this up with an appointment if necessary.  I committed myself to this new life and linfox should be understanding of the domestic situation I was in. 

It is my life, I want to live it my way.  Why should I have been locked into working another 11 months* just to reach 10 years fully completed.  I worked hard for linfox and I believe I deserve my entitlements."

[*Note: Mr Scheidel was employed as a full-time casual between 22 February 2007 and 11 October 2007, on which date his employment was converted to permanent.  In referring to "nine years and one month", and, later, "11 months" Mr Scheidel appears not to have taken his period of casual employment into account.]

  1. [13]
    Mr Scheidel also gave evidence that he went to Coffs Harbour Health Campus on 30 November 2016 to seek help because he was feeling suicidal.  He also said that a copy of a medical certificate* issued to him at this time was attached to his email to Mr Byrne, above.  This medical certificate records that the issuing Medical Officer was of the opinion that Mr Scheidel was suffering from "severe psychological distress secondary to relationship breakdown and workplace dispute".

[*Note: somewhat curiously, the medical certificate declares Mr Scheidel to be "unfit to resume work 30/11/16 - 28/11/16".  Leaving aside the reference to 28/11/16, the certificate does not suggest that Mr Scheidel's illness was going to restrict him from returning to work for other than a short period of time.]

 Medical evidence

  1. [14]
    Dr Eric De Leacy, Consultant Psychiatrist/Consultant Pathologist, gave evidence about an assessment of Mr Scheidel he undertook on 23 March 2017 at the request of TWUQ.
  1. [15]
    In his written Report about that consultation, dated 30 March 2017, Dr De Leacy recorded that Mr Scheidel was originally married in 2010, with that relationship ending in 2013.  He met another lady and he thought that relationship was going to go well.  However, this relationship deteriorated in around November 2016.
  1. [16]
    Dr De Leacy also reported:

"At that point in time he was developing severe anxiety and depression, sleep disturbance and was very confused.  He did not know what to do.  He has made statements that he wanted to sort his life out and start again but he did not know where to turn to.  He did not go to any psychologist and did not receive any treatment from a General Practitioner, but he certainly was not in a stable state of mind at this time.

…

On 30 November 2016, he attended the emergency department of the Coffs Harbour Health Campus requesting assistance for suicidal thoughts.  He was certified unfit for work due to 'severe psychological distress'.  I have seen a copy of this medical certificate.  I have also seen a copy of the document that Mr Scheidel wrote to explain his reasons for resigning.  I have read this letter but this does not actually explain he was suffering a mental illness.  He made various statements about issues that have occurred but underlying all this is a mental illness although he could not explain his situation in this medicalised way.  Mr Scheidel does not actually understand medical illness and did not know where to turn.  He did not know that it was useful at this stage to seek medical assistance.  I would consider that his correspondence lacks some insight into the seriousness of the nature of his state of mind at the time.  Although he does talk about his stressors, the letter does not fully convey the seriousness of his psychiatric disturbance.

…

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."

  1. [17]
    Finally, Dr De Leacy responded to the question asked of him by TWUQ (i.e. whether or not Mr Scheidel was suffering from an illness and/or incapacity which resulted in him resigning his employment) as follows:

"I answer in the affirmative.  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."

  1. [18]
    On 19 June 2017, Dr De Leacy provided a Supplementary Report to TWUQ in which he addressed the contents of several affidavits prepared by managers of Linfox about Mr Scheidel's behaviour leading up to his resignation and during the two weeks of his notice period and whether the information contained therein caused him to alter his original opinion (above).
  1. [19]
    In the course of this Supplementary Report, Dr De Leacy said:

"He presented at the interview in a depressed state.  I considered it was very likely he was quite confused and disorganised at that time in his life and was not in a position to make sound decisions and this had likely led to his resignation, in a state of mind where he thought he had no future.  He had certainly deteriorated.  He attended hospital on 30 November 2016 with suicidal thoughts.  He subsequently has had insufficient psychological or psychiatric care, but requires this care.

…

It is quite clear from the material supplied that there are differing opinions as to the reason for Mr Scheidel's resignation.  The three affidavits from management indicate that he resigned as a lifestyle decision but it appeared to me when I assessed Mr Scheidel that he was suffering from a depressive illness and had suffered significant adversity prior to resigning and it was very plausible that this adversity with failed relationships could have caused him to develop a mental illness in which his decision making would have been compromised.

I note that the affidavits from the three staff members do not support this view but it is my contention that Mr Scheidel probably did not communicate his difficulties adequately.  I had already formed the opinion that Mr Scheidel had very little knowledge of mental illness and probably would not have been inclined to admit he had a problem.  It is likely that he would not have made it clear what the real reason for his resignation was and tried to gloss over his issues.  He may have had a naïve idea that travel might sort him out.

In short, I found the version of events given to me by Mr Scheidel to be quite plausible and I have no reason to revise my views as expressed in my original report dated 30 March 2017."

Evidence on behalf of Linfox

  1. [20]
    Evidence on behalf of Linfox was given by Mr Kishore, Mr Byrne and Mr Kris Hardy, the Operations Manager of Linfox's Distribution Centre in Virginia.  While each of Mr Kishore and Mr Hardy believed that their respective discussions with Mr Scheidel about his intention to resign and move to Perth occurred in the week prior to his resignation, it was later accepted that this belief might have been a mistake on their part and that the discussions probably occurred, as claimed by Mr Scheidel, on Monday, 31 October 2016.
  1. [21]
    The relevant evidence of Mr Kishore and Mr Byrne, respectively, has been touched on above and it is not necessary to record any additional material at this time.  However, Mr Hardy's version of the conversation between he and Mr Scheidel, when the latter spoke about his plans to leave Linfox, was as follows:

"Mr Scheidel: You've probably heard, I'm thinking about leaving.

Me: Yeah, I had heard. So what's the story?

Mr Scheidel: This is something I have wanted to do for a long time. There is nothing in Brisbane holding me back.

Me: Are you sure about this, why don't you think about this. You've been here for a while, why don't you find out when your long service leave is due and if it close, why don't you hang around until you get it.

Mr Scheidel: Yeah, yeah. I'll go away and think about it.

Me:  Ok."

 Submissions on behalf of TWUQ

  1. [22]
    Ms M Cerrato, of TWUQ, who represented Mr Scheidel, presented well prepared and well argued written and oral submissions in support of the claim that Mr Scheidel's resignation fell within the provisions of s 43(4)(b)(i) of the Act, in that his resignation was "because of his mental illness and incapacity at that time."
  1. [23]
    In doing so Ms Cerrato referred to a number of previous decisions of the Commission which had considered the relevant provision, with particular attention paid to the decisions of Asbury C (as she then was) in Australian Workers' Union of Employees, Queensland v Sunshine Coast Private Hospital[1] and Toni O'Keefe v Queensland Diagnostic Imaging Pty Ltd,[2] as well as a decision of Neate C in Gibbons v eBet Ltd.[3] Ms Cerrato said that in the Sunshine Coast matter, Asbury C had set out six questions, derived from Full Court decisions in New South Wales, that would be relevant in determining an entitlement to proportionate long service leave on account of illness or incapacity. Relevantly, these questions were:
  1. Was the reason for the termination one which fell within the section?
  1. 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?
  1. 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?
  1. Did the reason claimed cause the employee to terminate his or her employment?
  1. Did the reason claimed affect the employee in relation to the particular service he or she terminated?
  1. 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?
  1. [24]
    Without recording the full extent of Ms Cerrato's submissions in relation to each of the questions recorded immediately above, her submissions can be conveniently summarised as follows:
  • Mr Scheidel resigned his employment because of his mental illness and incapacity.  He did not indicate that as the reason for his resignation because he was unaware of the extent of his illness at that time due to the confusion and turmoil he was experiencing, which was a direct result of his mental illness.  Dr De Leacy's Report indicates that while Mr Scheidel articulated his stressors at the time of his resignation, he did not understand, and was therefore unable to describe, that he was suffering from a mental ilness.
  • Dr De Leacy's Report confirms that Mr Scheidel made decisions he would not have made had he not been suffering from a mental illness, including his decision to resign his employment.
  • Dr De Leacy's Report also confirms that the real reason for Mr Scheidel's resignation was his mental illness.  The reasons cited by him at the time were the cause of the stressors which had led to him suffering a mental illness, which was the real cause of his resignation.
  • At the time he resigned his employment, Mr Scheidel was unaware of the extent of his mental illness and referred only to the stressors he was facing at that time - being the breakdown of his domestic relationship.
  • The medical certificate dated 30 November 2016, only two weeks after his employment ended, recorded that he was suffering "severe psychological stress".
  • Dr De Leacy's Report confirms that Mr Scheidel's mental illness at the time caused him to terminate his employment.  The Report concluded that because Mr Scheidel was suffering from a mental illness he was unable to make rational decisions about moving forward with his life.  In particular, Dr De Leacy did not find Mr Scheidel resigned because he had no other options but, rather, because he was unable to consider other options appropriately because of his mental illness.
  • It is clear from the evidence that the stressor that led directly to Mr Scheidel suffering a mental illness was the breakdown of his domestic relationship.  His actions and poor decision-making, including his decision to resign his employment, were a direct result of that mental illness.
  • As a result of his mental illness, Mr Scheidel was unable to continue in his employment.
  1. [25]
    In relation to the final question developed by Asbury C, Ms Cerrato said:

"This question poses some real difficulties in the context of this case.  Mr Scheidel was suffering from a mental illness at the time of his resignation and that caused him to resign his employment.  Whilst the test is an objective one, it could clearly only be applied in the context of a reasonable person suffering from the same mental illness.  In the context of Mr Scheidel's mental illness, this would render a person unable to make a reasonable or rational decision unaffected by said illness."

 Submissions on behalf of Linfox

  1. [26]
    Mr R Dalton, who represented Linfox, also presented well reasoned arguments in opposition to the TWUQ claim.  In the course of doing so, he referred to parts of Mr Scheidel's resignation letter, as follows:

"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."

  1. [27]
    Relevantly, in Mr Dalton's submission, Mr Scheidel worked out his two week notice period without incident or display of abnormal behaviour.  There were no issues with his performance and no issues with his attendance, he engaged with others in the workplace and there was nothing to suggest he was suffering from a medical condition, let alone one which might have caused him to resign from his employment due to illness or incapacity.
  1. [28]
    Like Ms Cerrato, Mr Dalton also referred to the decision of Asbury C in Sunshine Coast and presented submissions in relation to each of the six questions identified by her as relevant to determining whether a particular employee might be entitled to pro rata long service leave in circumstances where it was claimed the employee resigned their employment due to illness or incapacity.
  1. [29]
    Again, without recording them in their entirety, Mr Dalton made the following submissions in response to the various questions posed:
  • Mr Scheidel's resignation email detailed his reason for resignation, being akin to a "lifestyle change" after having foreseen the break-up of his relationship (as demonstrated in the extract from his resignation letter above).
  • Mr Scheidel could have stayed in Brisbane and continued his employment and gained a full entitlement to proportionate long service leave after a few more months of service.
  • Various Facebook posts by Mr Scheidel in the days and weeks following his resignation (appended to the affidavit of Mr Byrne) reinforced Linfox's view that Mr Scheidel resigned his employment to pursue a lifestyle change.
  • Before his resignation was delivered, Mr Scheidel openly discussed his desire to travel to Western Australia and sought employment opportunities there within Linfox's operations.
  • Employment opportunities in Western Australia could not be confirmed / finalised because Mr Scheidel's travel plans were uncertain, which is further evidence that his resignation was to pursue a lifestyle change by travelling around parts of Australia, photographing as he went.
  • There was no suggestion of any mental health issues until after Mr Byrne told Mr Scheidel, on 29 November 2016, that pro rata long service leave was only available to employees who resigned their employment because of illness or incapacity or a pressing or domestic necessity.

 Considerations and Conclusion

  1. [30]
    In Sunshine Coast, Asbury C referred to the origins of the provisions recorded in paragraph [3] above, and how they should be interpreted and applied, as follows:

"These provisions were inserted into the Act with effect from 1 June 2001 in response to a decision of a Full Bench of this Commission in Review of Entitlement to Long Service Leave (2000) 164 QGIG 236.  The First Reading Speech given by the Minister for Industrial Relations, in relation to the Industrial Relations and Another Act Amendment Bill, Queensland Weekly Hansard 22 March 2001, was referred to by Mr Simpson, with no objection from Dwyer.  Relevantly, at p. 96, in relation to the introduction of restricted access to pro rata long service leave after 7 years' service, the following statement appears:

'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.'

…

The Long Service Leave Act 1955 (NSW) provides an entitlement to proportionate payment for long service leave at s 4(2)(a)(iii) in the following terms:

'…in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker's serious or wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by the reason of the death of the worker…'

There is a significant body of case law on the application of provisions of the Long Service Leave Act 1955 (NSW) dealing with entitlement to pro rata long service leave payments on resignation.  The relevant provisions of the New South Wales legislation are virtually identical to those of the Queensland legislation, apart from the difference in the qualifying period.  The Long Service Leave Act 1955 (NSW) contains the terms 'for any reason'; 'on account of' and 'by the reason of' while s 43 of the Industrial Relations Act 1999 (Qld) contains the term 'because of'. It has been held that each of the terms in the New South Wales legislation means 'because of' and involves the notion of cause and effect: British Motor Corporation v Chance (1965) AR (NSW) 364.

In my view, given the reference to the New South Wales jurisdiction in the Reading Speech delivered by the Honourable Minister in relation to the amendments to the Queensland legislation, and the almost identical terms of the Queensland and New South Wales provisions, it is appropriate for this Commission to have regard to decisions of the New South Wales Industrial Relations Commission in determining cases under the Queensland legislation.  Two of the New South Wales cases referred to by the parties in this matter are particularly relevant, and warrant further consideration - British Motor Corporation v Chance (1965) 65 AR (NSW) 364 and Computer Sciences of Australia Pty Ltd v Leslie (1983) 83 AR NSW 828."

  1. [31]
    As noted by Asbury C above, and by Fisher C in Melanie Saxby, Department of Justice and Attorney-General v Southern Downs Security Pty Ltd,[4] the Act does not prescribe a particular method for determining claims for payment of pro rata long service leave in the circumstances mentioned in s 43(4).  Applications are to be determined on a case by case basis, having regard to the facts of each case.
  1. [32]
    In Southern Downs, Fisher C found it useful to adopt a relatively structured approach and, for convenience, considered three questions collectively, viz:
  • the reason given by the employee for his resignation;
  • whether the reason given by him is genuine and not in reality a pretence or deception; and
  • if the reason given by him is not the sole ground, whether it was the real and motivating reason.
  1. [33]
    In Paul Hawkins v Torres Strait Island Regional Council,[5] Swan DP wrote:

"There can be no definitive 'checklist' as to what criteria must be considered in determining a matter under this section of the Act.  Decisions are made by Members of the Commission according to the facts of the case at hand.  What might be applicable for consideration in some instances may not be applicable in others. 

In determining a matter under this section of the Act and in the circumstances of this case, it is my view that reference to the plain language used in the legislation, together with a Dictionary definition of the words, suffices."

  1. [34]
    Adopting that approach, the Deputy President went on to record that a commonsense application of the words used in the Act to the facts of the case was then required.  In doing so, her Honour said that the Macquire Dictionary definition of the word "because" is "for the reason that: due to the fact that".
  1. [35]
    In Sunshine Coast, Asbury C noted (see paragraph [30] above) that the Full Court of the Industrial Court of New South Wales found that the terms used in the NSW legislation, viz: "for any reason"; "on account of" and "by the reason of", all meant "because of".  In Southern Downs, Fisher C also found that the term "because of" had the same meaning as "for the reason of".
  1. [36]
    Importantly, in my view, five of the six questions developed by Asbury C as a result of her consideration of the leading New South Wales cases on the issue of an entitlement to pro rata long service leave, in circumstances where an employee resigns their employment "because of", "on account of", "for the reason of" illness or incapacity - as well as the three questions developed by Fisher C in Southern Downs - require consideration of the reason/s why a particular employee might have decided to resign their employment.
  1. [37]
    In this case, Ms Cerrato advanced the argument that Mr Scheidel resigned his employment because of the impact that his relationship breakdown had on his mental health.  In her submission, if it was not for that relationship breakdown, Mr Scheidel would not have resigned his employment.  He would not have decided to go travelling at that point in time if it had not been for the relationship breakdown and the impact it had on him.  Indeed, Ms Cerrato submitted that Mr Scheidel informed Mr Byrne, in the email of 30 November 2016, that if he had not resigned he would have required extended time off work to sort himself out.
  1. [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.
  1. [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. 
  1. [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.
  1. [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.
  1. [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.
  1. [43]
    An employee's entitlement to pro rata long service leave where they have between seven and 10 years' service is strictly qualified.  As Asbury C recorded in Sunshine Coast:

"It was also noted by the Commission in Leslie that the intention of the legislation in question was that an employer required to grant the substantial benefits under it was entitled to have the worker complete the minimum unconditional qualified period unless the contingencies provided with respect to earlier terminations were clearly met.  The approach in Leslie was cited with approval in subsequent cases: see for example Westbus v Bartush [2000] NSWIRC 26 (27 March 2000)."

  1. [44]
    Accordingly, in circumstances where an employee who resigns their employment with between seven and 10 years' service is only entitled to pro rata long service leave if they can establish that their resignation was because of illness or incapacity (or a domestic or pressing necessity), and where TWUQ has failed to establish that Mr Scheidel's resignation was because of illness or incapacity, the application must be refused.
  1. [45]
    For the foregoing reasons, I dismiss application no. B/2017/11.  I so order.

Footnotes

[1] (2003) 172 QGIG 1097.

[2] (2009) 192 QGIG 93.

[3] [2015] QIRC 7.

[4] [2010] QIRC 93.

[5] (2009) 190 QGIG 151.

Close

Editorial Notes

  • Published Case Name:

    Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd

  • Shortened Case Name:

    Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd

  • MNC:

    [2017] QIRC 74

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    04 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AWU AND Sunshine Coast Private Hospital (2003) 172 QGIG 1097
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1097
Cite 2 - (2003) 172 QGIG 1097
British Motor Corporation v Chance (1965) AR NSW 364
1 citation
Jump To
Cite 1 - (1965) AR NSW 364
British Motor Corporation v Chance (1965) 65 AR NSW 364
1 citation
Jump To
Cite 1 - (1965) 65 AR NSW 364
Computer Sciences of Australia Pty Ltd v Leslie (1983) 83 AR NSW 828
1 citation
Jump To
Cite 1 - (1983) 83 AR NSW 828
Department of Justice and Attorney-General v Southern Downs Security Pty Ltd [2010] QIRC 93
2 citations
Jump To
Cite 1 - [2010] QIRC 93
Cite 2 - [2010] QIRC 93
Gibbons v eBet Ltd [2015] QIRC 7
2 citations
Jump To
Cite 1 - [2015] QIRC 7
Cite 2 - [2015] QIRC 7
Hawkins v Torres Strait Island Regional Council (2009) 190 QGIG 151
2 citations
Jump To
Cite 1 - (2009) 190 QGIG 151
Cite 2 - (2009) 190 QGIG 151
O'Keefe v Queensland Diagnostic Imaging Pty Ltd (2009) 192 QGIG 93
2 citations
Jump To
Cite 1 - (2009) 192 QGIG 93
Cite 2 - (2009) 192 QGIG 93
Project Blue Sky Inc. v Australian Broadcasting Authority (2000) 164 QGIG 236
1 citation
Jump To
Cite 1 - (2000) 164 QGIG 236
Westbus v Bartush [2000] NSWIRC 26
1 citation
Jump To
Cite 1 - [2000] NSWIRC 26

Cases Citing

Case NameFull CitationFrequency
Transport Workers' Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2018] ICQ 12 citations
1

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