PRO RATA LONG SERVICE LEAVE - TO JUMP OR BE PUSHED

The Australian Workers’ Union of Employees, Queensland AND Sunshine Coast Private Hospital Queensland Industrial Relations Commission, Commissioner Asbury, Brisbane, 19 February 2003

The QIRC has ordered that an employee, who it found had resigned his job because of stress, should be paid his long service leave on a pro-rata basis. Under amendments to the Industrial Relations Act 1999 (Qld) introduced in June 2001, employees are entitled to pro-rata long service leave upon termination of employment after 7 years of service in a number of circumstances. The relevant provision (s.43(4)(b)(i)) covers the situation of employees terminating their employment because of illness or incapacity. Here, the employee had been suffering stress in his position of Purchasing Manager due to the introduction of a new purchasing and supply program and the long hours he was working. He had become the subject of a formal review process due to management concern about his work performance. The employee had undergone counselling sessions and had received a final warning stating that his performance would be reviewed in four weeks time and if there was no demonstrable improvement, his employment would be terminated. The employee had been seeking medical advice and assistance. After a final meeting, the employer accepted the employee’s resignation.

The AWU subsequently applied to the QIRC on the employee’s behalf for payment of pro-rata long service leave. In awarding pro-rata long service leave, Commissioner Asbury did not consider the term illness should be given a narrow meaning. She accepted that the symptoms of stress displayed by the employee and supported by medical evidence constituted an illness, even though there was no evidence of a recognisable psychiatric condition. The Commissioner also did not accept the employer’s argument that the employee’s actions were taken because the employer was intending to dismiss him. The Commission took into account the fact that the employee considered other factors, such as the impact of a dismissal on his future employment prospects in reaching his decision to resign, did not mean that illness was not the real and motivating factor. The Commissioner was also satisfied that a reasonable person in the employee’s position would have terminated their employment in the same circumstances. The amount ordered to be paid was $8850.18. There may be an appeal against the decision, but it is to be hoped that this does not lead to a wave of claims in similar situations.

LEAVE FOR FAMILY RESPONSIBILITIES DOES NOT WARRANT DISMISSAL

Garry Travers Graham AND Queensland Auto Service Centre Pty Ltd and A. Siokos Queensland Industrial Relations Commission, Commissioner Brown, Brisbane, 20 January 2003

This decision reinforces that employers should take a reasonable approach with employees who need to take reasonable periods of annual leave to care for sick members of their family. Mr Graham had worked full time as a workshop manager for the employer for 9 months at the time of his dismissal. The standard of his work was not in question. However, his daughter was diagnosed with an auto-immune disease in June 2002 which required constant medical attention. He advised his employer of this problem and they expressed their support for him. He was absent on 2 or 3 occasions for part days between June and August 2002. The employer approved annual leave for 2 weeks so that Mr Graham could care for his daughter after an operation.

Mr Graham was requested to attend a meeting with his employer on 3 September 2002 where he was advised that the business was being restructured and whilst 2 other employees were offered positions in the new structure, he was not. The employer allegedly said “with what is going on with your daughter’s sickness, I’m going to have to let you go…”. The employer also allegedly invited the applicant to contact them in 6 to 12 months time to see if a 20 hour per week position might be available. The employer argued that there had been an agreement that the applicant would be on unpaid leave until he was able to return to full time employment.

The Commissioner found that a termination had occurred and said that the applicant had attended the 3 September meeting as an employee and left as an ex-employee albeit with the ability to return in some capacity when his daughter’s health improved. That situation was imposed on him – he did not request it and the passage of time had shown the offer of future employment to be hollow. The Commissioner found that the termination occurred because of the applicant’s inability to assure the employer that his daughter’s illness would not interfere with his reliability as an employee in the future and was harsh, unjust and unreasonable. He also found that the applicant had been discriminated against on the basis of family responsibilities under the Anti-Discrimination Act 1991 which was an invalid reason for dismissal under the Industrial Relations Act.

EMAIL USAGE BY EMPLOYEE TO PROCURE ILLEGAL SUBSTANCE WARRANTS DISMISSAL Harvey v Qantas Airways Ltd, Australian Industrial Relations Commission, Commissioner Hodder, Brisbane, 20 January 2003.

The AIRC has rejected an unfair dismissal application by a QANTAS employee who had emailed a colleague in order to procure an illegal substance. The employee had held the position of telephone sales supervisor in the Brisbane office for 3 ½ years, having been employed by Qantas since 1989. In early 2002 Qantas discovered that the employee had used its email system to purchase a restricted drug for a colleague in Sydney. Qantas alleged that the employee had breached its Standards of personal behaviour, IT and Drug and Alcohol policies. In his decision, Commissioner Hodder considered:

• Whether the employee was aware of the relevant policies;

• Whether the employee breached the policies; and

• The employee’s supervisory position and length of service.

Having found that the employee was aware of and had breached the relevant policies, the Commission considered the decision to dismiss had not been unfair, unjust or unreasonable. In doing so, Commissioner Hodder found that the employer had notified the employee of the reason to terminate prior to the dismissal and had given the employee sufficient opportunity to respond to the allegations by means of the following:

• the applicant was provided with verbal and written notice of the allegations,

• the applicant was provided with copies of the relevant policies which Qantas had alleged he had breached,

• the applicant was directed to respond to the allegations in writing,

• the applicant was advised that he was required to attend a further meeting to have the opportunity to respond to the allegations,

• the applicant was advised that he was entitled to have a union representative or colleague with him at the further meeting, and

• the applicant was stood down with pay pending the outcome of the investigation.

The Commission rejected submissions of the employee that pertained to his lifestyle, branding them as “irrelevant” and further stated that due to the nature of the misconduct alleged, the issue of a warning to the applicant would not have been appropriate under the circumstances. This decision reminds us of the importance of ensuring employees are aware of workplace policies and the possible consequences for breach as well as the requirement to give employees sufficient opportunity to respond to allegations of misconduct.

AGE DISCRIMINATION – TEACHING OLD DOGS NEW TRICKS

Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QCA 518, Court of Appeal, Davies, Jerrard JJA and Philippides J, Brisbane, 27 November 2002

The Queensland Court of Appeal has dismissed an appeal by an employer and confirmed an Anti-Discrimination Tribunal decision which found that the employer had dismissed two employees on the basis of their age and contravened s136 of the Anti-Discrimination Act 1991 (Qld). The facts were that the employer had hired the complainants as storemen for a period of approximately three months, before dismissing them both in March 2000 on the basis that there was insufficient work due to a down turn in trade. In April 2000 one of the two complainants became aware that two younger employees had filled their previous positions. The complainants had their matter referred to the Tribunal by the Anti-Discrimination Commissioner on 8 December 2000. The employer argued that there had been a downturn in the business which meant there was not enough work to retain the complainant’s services and the terminations were decided on a “last employed, first out basis”. However, the Tribunal found that there was no lack of work for the respondents at the time of their dismissal and the loss of business from a major customer did not give rise to a need to reduce the number of storemen employed, nor any need for cost-cutting. There was evidence the employer decided employ storemen who could later be trained as salespeople. The Tribunal accepted that the substantial reason for the respondents dismissal was their age, in contravention of the legislation. The employer was ordered to pay one complainant $72,582 and the other complainant $8,906. The Court of Appeal rejected the arguments on appeal that the Tribunal had failed to give adequate reasons and that there was insufficient evidence to ground the finding of discrimination and the appeal was dismissed with costs.