Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Schipp v The Star Entertainment Qld Limited[2019] QIRC 49

Schipp v The Star Entertainment Qld Limited[2019] QIRC 49

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Schipp v The Star Entertainment Qld Limited [2019] QIRC 049

PARTIES:

Schipp, David

(Applicant)

v

The Star Entertainment Qld Limited

(Respondent)

CASE NO:

B/2018/39

PROCEEDING:

Proportionate payment of long service leave

DELIVERED ON:

21 March 2019

HEARING DATES:

18 January 2019

29 January 2019

18 February 2019

MEMBER:

HEARD AT:

Thompson IC

Brisbane

ORDER:

The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – Application for proportionate payment of long service leave - Statement of Agreed Facts - Illness-based incapacity for work - Pro rata long service leave entitlement - Termination of employment - Statutory interpretation - Legislation - Act does not confer a pro rata long service leave entitlement (continuous service in excess of seven years) when an employer dismisses an employee because of illness-based incapacity - Application dismissed.

LEGISLATION:

Industrial Relations Act 2016, s 95

Industrial Relations Act 1999, s 58, s 73, s 77

Disability Discrimination Act 1992 (Cth)

CASES:

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at 78

Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 at 6

Review of Long Service Leave Entitlement [2000] 124 QGIG 236

APPEARANCES:

Queensland, Parliamentary Debates, Legislative Assembly, 22 March 2001, 94-97 (Gordon Nuttall, Minister for Industrial Relations)

Maunder v Rane Brothers Pty Ltd [2003] 172 QGIG 1342

Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728 at [24]

Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031

Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218

J P Dundovich re J Dundovich v P&O Ports - PR923358 [2002] AIRC 1206

CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at 38

Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989

Elmes v Carpentaria Shire Council [2016] QIRC 118

Elaina Tito v Pilbara Iron Company (Services) Pty Limited [2018] FWC 7469 at [72]

Mr D. Schipp, Applicant

Ms K. Niehoff of The Star Entertainment Qld Limited, Respondent

Reasons for Decision

Background

  1. [1]
    An amended application for proportionate payment of long service leave was filed with the Industrial Registrar by David Schipp (Schipp) on 18 October 2018 in which he sought that The Star Entertainment Qld Limited (the respondent) be ordered to pay pro rata long service leave accrued by Schipp during a period of continuous employment from 26 May 2008 to the termination of his employment by the respondent on 28 April 2018.  The period of continuous employment was identified as nine years, eleven months and three days.
  1. [2]
    On 30 November 2018 the Queensland Industrial Relations Commission (Commission)issued a Further Directions Order in which the parties were required to file an Agreed Statement of Facts by 4.00 pm on Friday 14 December 2018.

Statement of Agreed Facts

  1. [3]
    The parties agreed that the Commission should determine final relief in the application for a proportionate payment of long service leave in the following terms:
  • determine whether s 95(4)(c)(i) of the Industrial Relations Act 2016 (the Act) confers a pro rata long service entitlement (continuous service in excess of seven years), when an employer dismisses an employee because of an employee's illnessbased incapacity for work; and
  • without:
  • -the parties leading evidence to resolve factual questions; or
  • -the Commission making an evidence-based determination in relation to Schipp's medical diagnosis.
  1. [4]
    The initial application filed by Schipp had asserted that the pro rata entitlement based on s 95(4)(c)(ii) of the Act was due because of the employment being unfairly terminated.  Subsequently an amended application was filed under s 95(4)(c)(i) of the Act that alleged the termination of employment was for a reason "other than the employee's conduct, capacity or performance".
  1. [5]
    The Commission is therefore not required to determine whether Schipp's employment was terminated in an unfair manner.
  1. [6]
    For the purpose of the Act, Schipp was an "employee", had service with the employer in excess of seven years and should the application be successful the amount payable would be $5,682.40 plus interest from 28 April 2018.
  1. [7]
    The respondent in correspondence (dated 28 April 2018) terminated Schipp's employment for the following reason:

Your employment has been terminated on the basis of you being unable to fulfil the inherent requirements of the role of Games Dealer.

  1. [8]
    A more complete reasoning for the termination was provided to Schipp in correspondence (dated 2 May 2018) which included:
  • The medical evidence indicated that you would be unable to safely return to your role as Game Dealer;
  • The Star Gold Coast had determined that you are not fit to perform the inherent requirements of your Dealer role now or in the foreseeable future and there are no reasonable accommodations that can be made in the workplace to accommodate your non-work-related condition; and
  • In relation to your request for pro rata payment for long service leave on termination, The Star Gold Coast had determined you do not have any such entitlement.  Under Queensland legislation this is not payable as The Star Gold Coast ended your employment based on your inability to perform the inherent requirements of your role.  The legislation entitles you to a pro rata payment if you chose to resign your employment based on illness or incapacity.

Submissions

Schipp

  1. [9]
    The question for the Commission is whether the provisions of s 95(4)(c)(i) of the Act confers a pro rata long service leave entitlement when an employer dismisses an employee because of an employee's incapacity through illness.  Section 95 of the Act includes that employees who have completed at least seven years continuous service are entitled to a proportionate payment of long service leave if:

…the termination is because the employer dismisses the employee for a reason other than the employee's conduct, capacity or performance.

The Act does not provide a definition on what constitutes "other than the employee's conduct, capacity or performance".

  1. [10]
    It was accepted, based on case law, that employees are exempt from proportionate payment if they "resign" for a reason other than illness or capacity; or a domestic or other pressing necessity or the passing of time.  Also, the same applies for employees who are lawfully and fairly dismissed for reasons of misconduct.

Statutory interpretation and intent

  1. [11]
    The meaning of "dismisses the employee for a reason other than the employee's conduct, capacity or performance" within s 95 of the Act (and in particular capacity) needs to be considered within the context of a proportional long service leave entitlement including consistency and fairness.
  1. [12]
    In the matter of Project Blue Sky v Australian Broadcasting Authority[1] it was stated:

…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.  Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.  The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

  1. [13]
    Further in Commissioner for Railways (NSW) v Agalianos[2], Dixon CJ stated:

…context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

Thus, the process of construction must always be considered  by examining the context of the provision that is being construed.

Legislation

  1. [14]
    The Act as it currently stands at s 95(4)(b)(i) provides that an employee is entitled to proportionate payment of long service leave for service in excess of seven years if the employee resigns due to "illness or incapacity".  In those circumstances it would seem logical and fair that the same entitlement would apply when an employer dismisses an employee due to "illness or incapacity".
  1. [15]
    In the following states and territories, the legislation relating to the application of pro rata long service leave entitlement allows for the payment of pro rata entitlements if employees are dismissed for "illness or medical incapacity" related reasons:
  • New South Wales;
  • Victoria;
  • South Australia;
  • Western Australia;
  • Tasmania;
  • Northern Territory; and
  • Australian Capital Territory.
  1. [16]
    Similar in all states and territories (other than Victoria) the applicable long service leave legislation entitles an employee to a pro rata payment when an employer dismisses the employee for a reason other than "serious and wilful misconduct".
  1. [17]
    An "illness capacity" dismissal is not conduct of wrong doing or misdemeanour and it would be unfair to penalise an employee dismissed for an illness incapacity by exempting them from a pro rata long service entitlement.
  1. [18]
    Prior to the Industrial Relations Act 1999 (IR Act 1999) the long service leave legislation included that an employee was entitled to a proportionate payment for long service leave unless terminated by the employer "for a cause other than serious misconduct".  In June 2001 the long service leave legislation was amended in Queensland and the words related to "serious misconduct" were replaced with "for a reason other than conduct capacity or performance".
  1. [19]
    The submission addressed a Review of Long Service Leave Entitlement[3] undertaken by a Full Bench of the Commission in 2000 and it appears that the replacement of "serious misconduct" was due to Industrial Tribunal experiences with unlawful and unfair dismissals.  The Review stated:

…given the experience with unlawful and unfair dismissals which industrial tribunals have acquired in the past decade, it seems to us entirely appropriate to march away from the distinction between serious misconduct and misconduct simpliciter.

  1. [20]
    Following the Review, the Queensland Parliament made changes through the Industrial Relations and Another Amendment Bill 2001 to long service entitlements.  In the course of the second reading speech the Minister for Industrial Relations made statements that included[4]:

The decision to legislate was advocated by both unions and employer groups and will ensure the benefits of the enhanced entitlement recommended by the QIRC are made available to all Queensland workers.

In essence, the Bill provides a fair outcome for workers who can now look forward to having earlier access to the leave entitlement.

Once again, the Government has got the balance right in the interests of all Queenslanders.

  1. [21]
    If the intent of the changes to the Act in 2001 was to deny employees dismissed for illness or medical incapacity a long service leave payment, this would be contrary to the "enhanced entitlement" referred to by the Minister.
  1. [22]
    In light of "public interest" the current terms of s 95 of the Act that entitles an employee to pro rata long service leave by resigning from the employment for "illness or incapacity" yet disqualifies an employee dismissed from the same reason for receiving the payment, is adverse, unfair and discriminatory.
  1. [23]
    It would be highly unlikely that the intention of the Queensland Government in introducing changes to long service leave in 2001 would have done so with the intent to disqualify employees dismissed for incapacity due to illness from receiving pro rata long service leave.
  1. [24]
    In the matter of Maunder v Rane Brothers Pty Ltd[5], Asbury C stated:

In an appropriate case, it would be open to the Commission to find that while an applicant may have been guilty of misconduct which warranted dismissal, the dismissal was unfair and the misconduct was not serious enough to justify the employer withholding payment of some entitlement such as long service leave.  In such a case, the withholding of the payment may in itself constitute the unfairness.

  1. [25]
    If a misconduct dismissal warranted a payment of pro rata long service leave and was considered as "not serious enough" and "unfair" to withhold the payment then it would stand to reason that it would be clearly unfair to withhold payment of long service leave for an illness incapacity dismissal.
  1. [26]
    The Disability Discrimination Act 1992 (Cth), at Part 2, Division 1, s 15(2) references that:

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability:

  1. (b)
    by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

  1. (d)
    by subjecting the employee to any other detriment.

Employment

  1. [27]
    The employment was terminated by the employer with five weeks' payment in lieu of notice for the reason that the medical evidence indicated he would be unable to safely return to his role of Games Dealer at the time or in the foreseeable future therefore not fulfilling the inherent requirements of the role.
  1. [28]
    It was conceded that there was an abundance of case law supportive of an employee being lawfully and fairly dismissed for illness incapacity and inability to meet the inherent requirements of a role that this type of dismissal relates to capacity.  However, an illness capacity dismissal should fall into the category of "dismisses…for a reason other than…conduct capacity or performance" when in the context of a long service entitlement because to do otherwise would be unfair and discriminatory.
  1. [29]
    It was not the intent of the Queensland Government to deny employees' pro rata long service leave when their employment was terminated for illness or medical incapacity.

Respondent

  1. [30]
    The submission addressed the legislation relevant to the matter before the Commission and in particular s 95(4)(c)(i) of the Act:

…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 -

  1. (c)
    the termination is because the employer -
  1. (i)
    dismisses the employee for a reason other than the employee's conduct, capacity or performance…
  1. [31]
    Schipp must establish that he was terminated for a reason "other than conduct, capacity or performance".

Agreed Facts

  1. [32]
    The parties adopted a Statement of Agreed Facts on 14 December 2018 with agreement to resolve the question, for financial relief, based on the statutory interpretation question only by reference to:
  • a Statement of Agreed Facts; and
  • without s 95(4)(c)(ii) of the Act.

The legal issue

  1. [33]
    The question for the Commission is whether the respondent terminated the employment of Schipp "for a reason other than the employee's conduct, capacity or performance".
  1. [34]
    The respondent argues the reason for the termination of Schipp's employment was his conduct, capacity or performance (incapacity).  Schipp appears to claim a termination, based on unfitness due to illness or injury, does not relate to his "conduct, capacity or performance".
  1. [35]
    There was no dispute in the context of s 95 that:
  • Schipp was an employee;
  • respondent was an employer;
  • Schipp had service in excess of seven years but less than 10 years; and
  • respondent terminated Schipp's employment.

Factual basis for termination

  1. [36]
    The Agreed Facts confirms that the respondent provided two letters to Schipp in relation to the termination.  The first letter justified the termination by reference to his ability to "fulfil the inherent requirements of the role of Games Dealer", with the second letter setting out further information based on the lack of fitness to perform his role.
  1. [37]
    Additionally, it was not disputed that:
  • Schipp suffered from an illness (described by him as anxiety disorder and stress) whilst employed by the respondent;
  • Schipp was absent from work due to that illness from 8 June 2017 until his employment was terminated;
  • the respondent referred Schipp for psychiatric assessment on 17 February 2018 having initiated that process on 25 January 2018;
  • Schipp was never cleared to return to his role;
  • the highest any medical evidence reached was Schipp's General Practitioner who opined on 7 December 2017 that he could return with a host employer.  This was contrary to advice obtained by the respondent; and
  • even on Schipp's own case he was not fit to return to his pre-absence role.
  1. [38]
    The issue between the parties was purely a legal one of "legislative interpretation/intent" or based on "interpretation and intention".  The respondent contended that being unfit for work relates to Schipp's conduct, capacity or performance and a termination of employment in reliance on unfitness for work is not for a reason "other than Schipp's conduct, capacity or performance".

Valid Reason

  1. [39]
    The respondent referenced predecessor legislation to proportional payment of long service leave that also depended on the reason for termination with the IR Act 1999 providing a proportionate entitlement if the employment was terminated by the employer "for a cause other than serious misconduct".
  1. [40]
    Following a review by the Commission under s 58 of the IR Act 1999 where the Full Bench amongst other things:
  • supported a reduction in the minimum qualifying period for a proportionate payment from ten to seven years;
  • was:

…uncomfortable with the idea that after a period of seven years an employee…whose dismissal is justified both in common law and under the [Act] but who has not engaged in "serious" misconduct should be entitled to a departure payment from the employer; and

  • confirmed that an entitlement should be denied when there is "a valid reason for the dismissal related to the employee's conduct, capacity or performance", given their experience with unlawful and unfair dismissals over the past decade.
  1. [41]
    The Full Bench's position in aligning the unfair termination framework with the pro rata long service leave entitlement to exclude claims when an employee had been terminated with a valid reason, despite having seven years' service had been picked up by the Industrial Relations and Another Amendment Act 2001 in terms that now reflect s 95(4)(c) of the Act.
  1. [42]
    The language of "conduct, capacity or performance" mirrored that appearing in s 77 of the IR Act 1999 relating to what constituted a valid reason for termination in an unfair termination claim.  At the time s 73 and s 77 of the IR Act 1999 in dealing with termination gave consideration in respect of a dismissal that was harsh, unjust or unreasonable which included having regard for "the employee's conduct, capacity or performance".
  1. [43]
    The adoption of the phrase "conduct, capacity and performance" must be read in the light of the historical context and the use of identical language in the different parts of the legislation must be tied to the objective.  Read consistently an employee would be entitled to a proportionate payment for long service leave only if the employer terminated for:
  • no valid reason;
  • no valid reason not based on conduct, capacity or performance - such as operational requirements e.g. redundancy; or
  • otherwise unfairly.
  1. [44]
    There is no doubt an employer has a valid reason to terminate if the employee is unfit to perform the inherent requirements of their role due to illness or injury.  In Birdi v Rail Corporation New South Wales T/A RailCorp[6] (Birdi):

It is well established that a long term medical condition that prevents an employee from performing the inherent requirements of the job constitutes a valid reason for termination.

  1. [45]
    The respondent argued that in Birdi the termination based on "conduct, capacity or performance" but specifically "capacity" gave the employer a sound basis for termination in the face of an injury or illness that impacted on the inherent requirements and would be described as a valid reason.
  1. [46]
    In Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission[7], the Federal Court of Australia had noted:

The word "capacity", as used in s 170CG(3)(a), means the employee's ability to do the work he or she is employed to do. A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job.

  1. [47]
    In Lion Dairy and Drinks Milk Limited v Norman[8] (Lion Dairy) a Full Bench of the Fair Work Commission was concerned with an employee whose employment had been terminated on medical grounds and confirmed that a number of Full Benches of the Commission and its predecessor had considered whether a valid reason regarding capacity existed given the case in J P Dundovich re J Dundovich v P&O Ports[9].
  1. [48]
    Lion Dairy identified principles that:
  • capacity cases based on medical opinions are different to misconduct cases in that in capacity cases the employer is usually required to have regard to an expert opinion or opinions;
  • in unfair dismissal cases the Commission must consider the relevant factual matrix.  In the case where the dismissal is of misconduct then the Commission must decide whether the conduct occurred based on the evidence; and
  • on a dismissal for capacity the Commission must have regard to medical opinions at the time of the decision to dismiss.  The existence of a valid reason for termination based on capacity depends on whether the reason was:
  • -sound;
  • -defensible; and
  • -well founded.

The reasons cannot be:

  • -capricious;
  • -fanciful;
  • -spiteful; or
  • -prejudiced.

The issue of capacity should be considered in the context of a "fair go all round" and it was appropriate to consider medical assessments that relate to capacity to perform the full duties of the position.

  1. [49]
    In CSL Limited T/A CSL Behring v Chris Papaioannou[10] a Full Bench in determining an appeal noted:

Counsel for the Appellant contended that Lion Dairy was authority for the proposition that when there are expert medical assessments going to an employee's capacity, the Commission does not go behind those assessments and make its own assessment.  In short, in a capacity case if the employer has reasonably relied upon medical evidence that is the end of the matter. The Commission would only interfere if the employer's reliance on a medical report was unreasonable, for example if the report was vague and not categorical with respect to the employee's capacity.

  1. [50]
    The Full Bench noted that in a capacity case it was required to consider whether at the time of dismissal, an applicant suffered from the alleged incapacity, based on the relevant medical and other evidence before the Commission.
  1. [51]
    Other authorities relied upon included:
  • Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited[11];
  • Elmes v Carpentaria Shire Council[12]; and
  • Elaina Tito v Pilbara Iron Company (Services) Pty Limited[13] (Tito), where it was stated:

With regard to 'capacity', I am required to make findings as to whether, at the time of dismissal, Ms Tito suffered from the alleged incapacity.  The findings are to be based on the relevant medical and other evidence before the Commission.

The interpretation in Tito "dovetails" with s 95(4)(b)(i) of the Act which provides for a proportionate entitlement when the employee terminates the service because of the employee's illness or incapacity.

  1. [52]
    On why the section of the Act distinguishes resignation from employer termination, if employer termination for illness or injury was "other than for conduct, capacity or performance" and gave rise to an entitlement either way, it would have been more natural to provide for an entitlement when employment ends due to illness or injury, regardless of which party initiates the termination.
  1. [53]
    The sensible rationale for treating employer termination differently, is apparent from the decision in the Review of Long Service Leave Entitlement[14] under s 58 of the IR Act 1999 undertaken by the Commission.
  1. [54]
    Accordingly, the employment of Schipp was not terminated for a reason "other than conduct, capacity or performance" and the claim must fail.

Schipp - Submission in Reply

  1. [55]
    It was not disputed that an employee can be lawfully and fairly dismissed for an illness, incapacity and inability to meet the inherent requirements of a role.
  1. [56]
    The matter for determination is whether an employee dismissed for an illness or medical incapacity is entitled to a payment for proportionate long service leave.  An illness incapacity should fall into the category of dismissal for "reason other than conduct, capacity or performance" when applied to a long service leave entitlement.  The reading of the long service leave legislation by the respondent could have the consequences of an employer telling an employee, in circumstances where a pro rata payment for long service leave is available that unless they resign their employment they can be dismissed and not receive payment therefore leading to a constructive dismissal.

Conclusion

  1. [57]
    The determination by the Commission was limited in nature as a consequence of the parties having in a Statement of Agreed Facts agreed that the Commission:
  • determine whether s 95(4)(c)(i) of the Industrial Relations Act 2016 (the Act) confers a pro rata long service entitlement (continuous service in excess of seven years), when an employer dismisses an employee because of an employee's illnessbased incapacity for work.
  1. [58]
    Whether the terms contained within the Statement of Agreed Facts were equally beneficial or otherwise to both parties is not a matter that the Commission ought to interfere with, particularly in circumstances where the parties freely entered into such agreement.

Legislation

  1. [59]
    The legislation principally applicable is that of s 95(4)(c)(i) of the Act:
  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 -

  1. (c)
    the termination is because the employer -
  1. (i)
    dismisses the employee for a reason other than the employee’s conduct, capacity or performance…
  1. [60]
    There is in fact no contest that the respondent in terminating Schipp's employment on 28 April 2018 provided two letters to him in which they informed of the reasons relied upon in terminating his employment.  The first letter (dated 28 April 2018) stated:

Your employment has been terminated on the basis of you being unable to fulfil the inherent requirements of the role of Games Dealer.

  1. [61]
    The second letter (dated 2 May 2018) further stated:
  1. (1)
    The medical evidence indicated that you would be unable to safely return to your role as Game Dealer.
  1. (2)
    The Star Gold Coast had determined that you are not fit to perform the inherent requirements of your Dealer role now or in the foreseeable future and there are no reasonable accommodations that can be made in the workplace to accommodate your non-work-related condition.
  1. (3)
    In relation to your request for pro rata payment for long service leave on termination, The Star Gold Coast had determined you do not have any such entitlement.  Under Queensland legislation this is not payable as The Star Gold Coast ended your employment based on your inability to perform the inherent requirements of your role.  The legislation entitles you to a pro rata payment if you chose to resign your employment based on illness or incapacity.
  1. [62]
    The respondent in the correspondence of 28 April 2018 and 2 May 2018 did not reference directly that Schipp's employment had been terminated for "conduct, capacity or performance" but for the inability of Schipp to "fulfil the inherent requirements" of his role.
  1. [63]
    Upon examination of the material before the proceedings, it is of record that Schipp had been absent from the workplace, through illness from 8 June 2017 until his termination on 28 April 2018.  Further a psychiatric assessment of Schipp had occurred at the behest of the respondent on 17 February 2018 and that Schipp did not at the time of termination have a certificate from a qualified medical practitioner clearing him to return to his substantive role with the respondent.
  1. [64]
    Schipp's medical condition was not one that had been accepted as work-related and his unfitness to present for work was due to his personal circumstances rather than having arisen in the course of his employment, without any causal connection to the employment.
  1. [65]
    In Birdi v Rail Corporation New South Wales T/A RailCorp[15] it had been established that a long-term medical condition preventing an employee from performing the inherent requirements of the job, constituted a valid reason for termination.  The following authorities cited in the course of the proceedings were supportive of "capacity" being related to the ability of an employee to undertake the work associated with their role:
  • Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission[16];
  • Lion Dairy and Drinks Milk Limited v Norman[17];
  • CSL Limited T/A CSL Behring v Chris Papaioannou[18];
  • Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited[19];
  • Elmes v Carpentaria Shire Council[20]; and
  • Elaina Tito v Pilbara Iron Company (Services) Pty Limited[21].
  1. [66]
    The matter of whether the termination of Schipp was harsh, unjust or unfair was not a task to which the Commission was to apply its jurisdiction however at the same time it is abundantly clear, based upon both the material and authorities available that Schipp's employment was terminated on 28 April 2018 by the respondent for reasons of illness and incapacity.

Long Service Leave entitlement

  1. [67]
    There is at s 95(3) of the Act a provision for an employee who had not completed ten years continuous service but had completed more than seven years of such service, to receive a proportionate payment on termination in certain circumstances:

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. [68]
    In this case if Schipp had informed the respondent on 28 April 2018 (prior to being terminated) that he was terminating his employment because of illness or incapacity pursuant to s 95(4)(b)(i) of the Act he would have been entitled to a proportionate payment of any accrued long service leave, in this case nine years, eleven months and three days equating to the sum of $5,682.40 at 28 April 2018.  See s 95(4)(b)(i) of the Act:
  1. (b)
    the employee terminates the service because of -
  1. (i)
    the employee’s illness or incapacity…
  1. [69]
    However as unreasonable as it may appear the fact that the respondent exercised the option of terminating Schipp's employment, precludes him in my view from being able to lawfully access a proportionate payment of long service leave pursuant to s 95(4)(c)(i) of the Act in that the termination was not for a reason "other" than his "conduct, capacity or performance".
  1. [70]
    On the basis of supposition only, a decision to terminate an employee with less than three weeks remaining to make 10 years of continuous employment, so as not to be liable for payment of long service leave, would be a reason "other" than conduct, capacity or performance and leave the employee eligible to receive a proportionate payment of long service leave.
  1. [71]
    The provisions of s 95(4)(c)(i) of the Act had its legislative genesis in the Industrial Relations and Another Amendment Bill 2001 where it appears that the Government of the day were accepting of a position adopted by the Full Bench of this Commission in the Review of Long Service Leave Entitlement[22] where they found:

In our view, an employee who has unlawfully brought the engagement to an end, or who has lawfully terminated the engagement for a reason other than illness, incapacity, or domestic or other pressing necessity (or death), should not be entitled to a proportionate payment in lieu of long service leave after 7 continuous years of service. Further, given the experience with unlawful and unfair dismissals which industrial tribunals have acquired in the past decade, it seems to us entirely appropriate to march away from the distinction between serious misconduct and misconduct simpliciter, and to deny entitlement where there is a valid reason for the dismissal related to the employee's conduct, capacity or performance.

Statutory Interpretation

  1. [72]
    Schipp relied upon the matter of Project Blue Sky v Australian Broadcasting Authority[23] which found that it was the duty of the court "to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have".  The Queensland Government in amending the IR Act 1999 in terms of "conduct, capacity and or performance" had reflected the finding of the Full Bench in the Review of Long Service Leave Entitlement[24], which on my reading was patently obvious, that an employee with more than seven years but less than ten years' service whose employment was terminated by the employer for capacity (as in this case), were to be denied a proportionate payment of long service leave.  Those provisions were transferred to the current Act that was assented to on 9 December 2016.
  1. [73]
    The statutory interpretation of s 95(4)(c)(i) would in my view reflect the "ordinary" meaning attached to the wording.

Finding

  1. [74]
    On consideration of the submissions and material placed before the proceeding I have determined based upon the requisite standard of proof that s 95(4)(c)(i) of the Act does not confer a pro rata long service leave entitlement (continuous service in excess of seven years) when an employer dismisses an employee because of the employee's illnessbased incapacity for work.  The application is dismissed.
  1. [75]
    I so order.

Footnotes

[1] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at 78

[2] Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 at 6

[3] Review of Long Service Leave Entitlement [2000] 124 QGIG 236

[4] Queensland, Parliamentary Debates, Legislative Assembly, 22 March 2001, 94-97 (Gordon Nuttall, Minister for Industrial Relations)

[5] Maunder v Rane Brothers Pty Ltd [2003] 172 QGIG 1342

[6] Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728 at [24]

[7] Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031

[8] Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218

[9] J P Dundovich re J Dundovich v P&O Ports - PR923358 [2002] AIRC 1206

[10] CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at 38

[11] Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989

[12] Elmes v Carpentaria Shire Council [2016] QIRC 118

[13] Elaina Tito v Pilbara Iron Company (Services) Pty Limited [2018] FWC 7469 at [72]

[14] Review of Long Service Leave Entitlement [2000] 124 QGIG 236

[15] Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728 at [24]

[16] Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031

[17] Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218

[18] CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at 38

[19] Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989

[20] Elmes v Carpentaria Shire Council [2016] QIRC 118

[21] Elaina Tito v Pilbara Iron Company (Services) Pty Limited [2018] FWC 7469 at [72]

[22] Review of Long Service Leave Entitlement [2000] 124 QGIG 236

[23] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at 78

[24] Review of Long Service Leave Entitlement [2000] 124 QGIG 236

Close

Editorial Notes

  • Published Case Name:

    Schipp v The Star Entertainment Qld Limited

  • Shortened Case Name:

    Schipp v The Star Entertainment Qld Limited

  • MNC:

    [2019] QIRC 49

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    21 Mar 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.