Sambo v The Trustee for Dotti Family Trust
[2020] QIRC 82
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- Unreported Judgment
- Sambo v The Trustee for Dotti Family Trust[2020] QIRC 82
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Sambo v The Trustee for Dotti Family Trust[2020] QIRC 82
Sambo v The Trustee for Dotti Family Trust[2020] QIRC 82
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sambo v The Trustee for Dotti Family Trust 2020 QIRC 082 |
PARTIES: | Sylvain Sambo Applicant v The Trustee for Dotti Family Trust Respondent |
CASE NO: | B/2020/3 |
PROCEEDING: | Recovery of pro rata long service leave |
DELIVERED ON: | 9 June 2020 |
MEMBER: | IC Power |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – Application for pro-rata long service leave after seven years employment – reasons for termination – domestic or other pressing necessity |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 95(3), 95(4)(b) |
CASES: | Ahern v IA Group Pty Ltd [2014] QIRC 31. Toni O'Keefe v Queensland Diagnostic Imaging Pty Ltd [2009] 192 QGIG 93. Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd [2018] ICQ 001. Vermeer v Montague Fresh Qld Pty Ltd [2007] 185 QGIG 220. |
Reasons for Decision
- [1]This matter concerns an application for proportionate payment of the Applicant's long service leave entitlement in relation to their employment with the Respondent, pursuant to s 95 of the Industrial Relations Act 2016 (Qld) ('the Act').
- [2]The Applicant initially commenced employment with the Respondent as a farm hand in February 2011 for a number of weeks prior to Cyclone Yasi arriving in Innisfail. The Applicant then recommenced employment with the Respondent on or around 1 September 2011 for a period of just over 8 years, concluding in mid-November 2019.
Applicant's Submissions
- [3]I have read and considered the Applicant's submissions. These submissions are summarised as follows.
- [4]The Applicant had considered a promotion opportunity in the future but was informed in mid-October 2019 by the Respondent that there was no further opportunity to become a manager.
- [5]During the period of employment, the Applicant's wife was also employed by the Respondent carrying out property management duties and caretaking duties for seasonal workers in mid-October 2019. The Applicant’s wife disclosed that she had been stealing money from other seasonal workers employed by the Respondent and was terminated immediately.
- [6]As a consequence, the Applicant submits that he felt considerable pressure and awkwardness in the workplace.[1] Furthermore, the Applicant submitted that the Respondent placed pressure upon him to distance himself from his wife.
- [7]The Applicant summarises his reasons for resignation as being:[2]
- in response to awkwardness at work following his wife’s actions;
- increased pressure placed upon himself and his family; and
- a need to support his wife through a legal proceeding.
- [8]The Applicant submits that, pursuant to s 95(4)(b) of the Act, these circumstances demonstrate a 'domestic or other pressing necessity'.
Respondent's Submissions
- [9]I have read and considered the Respondent's submissions. A summary of the Respondent's submissions are as follows.
- [10]The Respondent makes several submissions regarding the Applicant's status of employment and his misunderstanding of being 'next-in-line' for a managerial role on the farm. The Respondent submits that they suggested to the Applicant that a local farmer they knew would be interested in hiring him as a supervisor, but it was only a suggestion and if he didn’t wish to take up the offer his employment would not cease.
- [11]The Respondent submits that the Applicant was excited with the prospect and told them it was something he would like to negotiate.
- [12]The Respondent's submissions confirm the Applicant's wife's status of employment on the farm and allegations of theft from other seasonal workers. The Respondent submits that they never pressured the Applicant into separating from his wife.
- [13]The Respondent submits that, immediately following the incident, the Applicant was stood down with pay, as they were unsure of his involvement in his wife's actions. One week after the Applicant's return to work, he indicated to the Respondent that he would be resigning on the basis that "he felt too uncomfortable at work” and requested that he be given time off work to seek employment elsewhere. The Respondent submits that he “told him that this is not how we would like this to end but understood Sylvain’s request and that was okay. This was the last time either of us saw or spoke to Sylvain.”
- [14]The Respondent does not agree that the Applicant resigned because of a domestic or other pressing necessity, although submit that “his leaving was very premature in that everyone, including our other 34 workers on our farm were feeling quite distressed at this time, where we were all trying to cope and move on with the situation.”
Legislative Provisions
- [15]The Act sets out the entitlement of employees for payment of long service leave for periods of ten years or more, and for proportionate payment for periods of continuous service where an employee has completed at least seven years continuous service, and where other specific conditions are met.
- [16]Section 95 of the Act provides:
95 Entitlement – employees other than seasonal employees
- (1)This section applies to an employee, other than a seasonal employee.
Note—
For provisions applicable to seasonal employees, see subdivisions 7 and 8.
- (2)The employee is entitled to long service leave, on full pay, of—
- if the employee has completed 10 years' continuous service—8.6667 weeks; and
- after 10 years' service, if the employee has completed at least a further 5 years' continuous service—a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
- (3)An employee who has completed at least 7 years' continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.
- (4)However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if—
- the employee's service is terminated because of the employee's death; or
- the employee terminates the service because of—
- (i)the employee's illness or incapacity; or
- (ii)a domestic or other pressing necessity; …”
- [17]Notably, Section 95(4)(b)(ii) of the Act provides that, if an employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment if the employee terminates the service due to a domestic or pressing necessity.
Considerations
- [18]There is some uncertainty as to the Applicant's exact period of employment. The Respondent submits that the last time they saw the Applicant was when he sought leave to look for other work on 18 November 2019 and the Applicant submits that he commenced employment elsewhere on 25 November 2019. Based on these dates however it is clear that the employment period is greater than 7 years, as required under the Act.[3]
- [19]The Applicant submits that he felt pressure to separate from his wife following her termination for stealing. The Respondent submits that at no time did they ask the Applicant to leave his wife. There is no reason to doubt the Respondent’s submission that they did not ask the Applicant to separate from his wife, however I accept that the Applicant felt this pressure generally given his description of 'awkwardness' following his wife’s actions.
- [20]It is clear from both parties’ submissions that one of the reasons the Applicant resigned was because he felt uncomfortable and awkward at work following the termination of the employment of his wife. The Applicant submits that this extended to the ongoing legal matter involving his wife that required his assistance and attention.
- [21]A second possible reason for the Applicant’s resignation relates to the issue regarding potential advancement to a farm manager position. Both parties submit that a conversation was held during which the Applicant was advised that he would not be elevated to a managerial position at the Dotti Farming Company. The Respondent submits that the Applicant was informed that a position may be available with another farmer and the Applicant indicated that it was something he would like to negotiate. The timing of this conversation appears to be just prior to the termination of the Applicant’s wife. There is no indication that the Applicant had formally agreed to pursue this other position or had formed an intention to terminate his employment with the Respondent in order to commence this other role. It may be that negotiations may not have concluded satisfactorily, and the Applicant may have continued to work for the Respondent thereafter. It would not be reasonable to conclude that the Applicant had resigned because of the potential of an alternate role on the basis of this conversation alone.
- [22]Given the Applicant appears to have resigned for multiple reasons, it is necessary to determine if these reasons satisfy s 95.
- [23]As stated in Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) v Linfox Australia Pty Ltd,[4] an employee’s motivation or statements to their employer cannot be determinate of their entitlement because they alone cannot prove the cause of the employee’s termination. Relevantly:
“If an employee resigns due to illness, but tells their employer they have done so to find a new line of work, the cause of the termination is the illness. Similarly, where an employee claims to have been suffering an illness, but is found to be healthy, that employee has not terminated their employment because of an illness. They may honestly believe that illness was the reason for their termination, but that will not render them eligible under the Act.”[5]
- [24]Further, in the case of Toni O'Keefe v Queensland Diagnostic Imaging Pty Ltd,[6] Commissioner Asbury states that:
"The failure of an employee to discuss issues which are later said to entitle the employee to payment for proportionate long service leave under s. 43(4)(b)(i) or (ii) may be relevant to whether or not those issues were genuine. However, the fact that an employee does not discuss an issue with his or her manager is not determinative. Issues which lead an employee to terminate employment because of domestic or other pressing necessity, or injury or illness, may be sensitive issues which that employee is reluctant or even embarrassed to raise with a manager. This does not make the issue which causes the employee to resign any less genuine." (my emphasis added)
- [25]It is reasonable to conclude that the Applicant did not refer to the circumstances surrounding his wife in his original application due to possible embarrassment. The Respondent's submissions however state that the last time they spoke to the Applicant he referred to the 'awkwardness' of returning to the workplace given the circumstances involving his wife. The Applicant’s subsequent written submissions outline the impact that his wife’s actions and termination had on his mental health and the need to support her through the impending legal matters leading to his resignation.
- [26]I am satisfied that the Applicant resigned because he felt uncomfortable attending the workplace due to the events involving his wife and his need to assist his wife with the ongoing legal issues with his employer. Whilst I accept that the Applicant was interested in obtaining a more senior role in either his current employment or on another farm, I am not persuaded that this was the motivating reason for the termination of his employment. There is no evidence before me to indicate that the role obtained by the Applicant was finalised prior to the incident involving his wife. Whilst obtaining a role with another employer within a short period was fortuitous in the circumstances, I am satisfied that the main and motivating reason for the termination of the Applicant’s employment was to enable him to support his wife during the legal proceedings.
Did the Applicant terminate his employment “because of a domestic or other pressing necessity"?
- [27]I accept that the Applicant terminated his employment to support his wife in navigating legal matters that are, by his account, 'complex' and require his assistance. The next consideration is whether these circumstances can be considered a "domestic or other pressing necessity".
- [28]In Vermeer v Montague Fresh Qld Pty Ltd,[7] Commissioner Brown adopted the usual definition for "domestic" and "pressing". That being, a "domestic" issue is one that relates to the home, household, or household affairs; and, a "pressing" issue is one that is urgent and demands immediate attention. An application of this definition to the Applicant's circumstances would suggest that a matter involving one's partner clearly relates to the 'household affairs' and impending legal matters would 'demand immediate attention'.
- [29]In Ahern v IA Group Pty Ltd,[8] Commissioner Black discussed the standard required in meeting a "domestic or other pressing necessity".
"After all, what is being dealt with is not a sphere-shaking issue but a reason for terminating employment and a material consideration must be whether the domestic situation is such that a reasonable man might feel compelled to seek its solution by terminating his employment." (my emphasis added)
- [30]In the context of assisting a spouse navigate a legal matter involving his employer, it is not unreasonable to conclude that an ordinary person would feel compelled to terminate their employment so that they may provide assistance and support to their partner. The Applicant submits “I chose to support my wife”, stating that although he did not condone her actions, he chose to support her rather than continue his employment. I am persuaded that the continued support of his wife in these circumstances can be characterised as a domestic necessity.
- [31]On this basis, I accept that Mr Sambo resigned from his employment to assist his wife in a legal matter involving his employer, and this resignation constitutes a resignation due to a domestic or pressing necessity.
The Order
- [32]I am satisfied that this application meets the requirements of s 95(4)(b)(ii) of the Act and therefore make the following order:
- The Application is granted.
- The Respondent is to file in the Industrial Registry and serve upon the Applicant a statement containing the gross and net monetary value of the amount of long service leave accrued by the Applicant, and confirmation that the monetary value is the cash equivalent of long service leave represented in hours, days and weeks, by 4.00pm 16 June 2020.
- The Applicant is to provide to the Industrial Registry and serve upon the Respondent a statement in reply if the Applicant disagrees with the information provided in Order 2, by 4.00pm 19 June 2020.
- Pursuant to s 580 of the Act, all documents relevant to the matter be withheld from release or search absolutely or until further order of the Commission.
Footnotes
[1] Submission of the Applicant, filed on 18 March 2020, paragraph 4.
[2] Submissions of the Applicant, filed on 18 March 2020, paragraph 5.
[3] Industrial Relations Act 2016 (Qld) s 95(3)
[4] [2015] ICQ 001.
[5] Ibid [18].
[6] [2009] 192 QGIG 93.
[7] [2007] 185 QGIG 220.
[8] [2014] QIRC 31.