[Extract from Queensland Government Industrial Gazette, dated 6 July, 2007, Vol. 185, No. 10, pages 220-224]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc.

Robert John Vermeer AND Montague Fresh Qld Pty Ltd (B/2007/27)

COMMISSIONER BROWN 25 June 2007

DECISION

By application filed 27 March 2007 Mr Robert John Vermeer sought proportionate payment for long service leave from his former employer, Montague Fresh Qld Pty Ltd (the Respondent).

Whilst this application has been made pursuant to s. 278 of the Industrial Relations Act 1999 (the Act) - power to recover unpaid wages and superannuation contribution etc., it relies on the argument that Mr Vermeer resigned because of pressing domestic or other necessity. The relevant section of the Act states:

"43 Entitlement

(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.

(4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if -

…

(b) the employee terminates the service because of -

(i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or.".

Whether or not Mr Vermeer's resignation eventuated because of a domestic or other pressing necessity is the matter in issue.

Mr Vermeer commenced employment with the Respondent on 5 January 1998 and remained employed until 14 March 2007 when he submitted a written resignation. Whilst the resignation offered one month's notice of termination, a conversation between Mr Vermeer and Hamish Montague (Assistant State Manager and Executive Director of the Respondent) resulted in agreement that Mr Vermeer be paid for his notice period whilst not being required to work it. He finished with the Respondent that day.

The letter of resignation states inter alia -

"I am leaving Montague's due to pressing domestic responsibilities and therefore request, as per my entitlement, payment of all leave accruals, including my long service leave, as per Part 3, Section 43(4bii) of the Queensland Industrial Relations Act 1999.".

Mr Vermeer and his wife, Ngairie Vermeer, had been married for approximately 10 years and in that time begot three children.

Mrs Vermeer had been with her employer for approximately 14 years and in more recent years in a senior role. She stated that she would normally arrive at work between 8.30 am and 9.00 am and leave between 5.30 pm and 6.30 pm. She claimed that Mr Vermeer commenced his work anywhere between 2.00 am and 6.00 am which meant that it was her role each weekday to transport her eldest child to school and the younger two to childcare prior to driving to work which required, she said, a journey of some 30 to 45 minutes depending on traffic.

She stated that for a period of 6 weeks following the birth of her youngest child she was unable to drive which necessitated Mr Vermeer taking time off work daily to drive the children.

Regarding Mr Vermeer, Mrs Vermeer stated that whilst it was his duty to collect the children from school and child chare when he finished work of an afternoon, he had usually not prepared dinner, bathed the children nor assisted with 2 homework by the time she arrived home. This, she said, was because Mr Vermeer was tired from commencing work so early and usually meant that he would retire early leaving her to meet those responsibilities. Communication between Mr and Mrs Vermeer was, she said, minimal. She stated that this caused a strain on the relationship to the extent that she believed that if their circumstances continued that they could both burn out with the result being the complete breakdown of the relationship.

She stated that since leaving the employ of the Respondent, Mr Vermeer had participated more fully in the family's activities, lessening the strain on her and removing the threat to their marriage.

The evidence of Mr Vermeer supported that of his wife, in particular, he claimed that his early starting times and the 24 hour, 7 day on-call aspect of his job with the Respondent, placed enormous pressure on his family life and his ability to contribute in the day to day running of the household (Ex. 2, para. 5).

He also claimed that the hours of work problem was compounded by the "toxic" work environment which arose from what he described as "constant aggressive workplace conflict" (Ex. 2, para. 4).

He stated that in December 2006 he made two attempts to initiate talks with Mr Bain (Group Personnel Manager) regarding altering his working arrangements but Mr Bain did not return his calls. He also recalled speaking with Mr Bain in January 2007 regarding the possibility of lowering his wages in return for extra annual leave.

He accepted that he had not spoken to the Respondent about the reasons for his termination prior to his termination.

He stated that his family life had improved markedly since leaving the employ of the Respondent.

Evidence for the Respondent was given by Hamish James Montague, Andrew Grant Fletcher, Business Manager Sales for the Respondent and Evan Thomas Bain, Group Personnel Manager for the Respondent.

Mr Bain denied Mr Vermeer's assertions that he had failed to return calls and further denied talking to Mr Vermeer in January 2007 regarding variations to the annual leave arrangements. Mr Bain recalled asking Mr Vermeer for details of his pressing domestic circumstances upon sighting his letter of resignation and also recollected that Mr Vermeer responded by saying "I suppose a marriage break up is not a good enough reason".

Andrew Grant Fletcher stated in evidence that he regarded Mr Vermeer as a hard working, reliable and honest staff member. He stated that he was unaware that Mr Vermeer had any domestic problems impacting on his job and that Mr Vermeer had not made any reference to him regarding his hours causing him a problem at home.

Both Mr Fletcher and Mr Montague stated that they believed that any toxic working environment perceived by Mr Vermeer was of his own making and arose through Mr Vermeer's aggressiveness and his attitude to staff.

Mr Fletcher was aware that Mr Vermeer had an interest in a fruit shop and had taken 2 week's leave in August 2006 to work in the shop whilst the usual manager was off work.

Mr Montague's evidence-in-chief, contained in a sworn statement dated 28 May 2007, was accepted without cross- examination. In his statement, Mr Montague indicated that he regarded Mr Vermeer as dedicated, trustworthy and reliable. He stated that he was totally unaware of any problems confronting Mr Vermeer with respect to hours of work or domestic pressure. This he stated was worthy of note as he was the person to whom Mr Vermeer directly reported and, according to Mr Montague's evidence, regularly discussed matters not directly related to work.

Mr Montague's statement indicated that Mr Vermeer's working hours were generally 4.00 a.m. to midday on Mondays and Fridays and on Tuesday, Wednesday and Thursday from 5.00 am to 11.00 am.

His statement included that on occasions Mr Vermeer had absented himself from work and when asked the reason had replied stating that he had attended to household tasks including taking children to school. Mr Montague did not take issue with such absences as he allowed Mr Vermeer to manage his time as he saw fit.

According to Mr Montague's written evidence, Mr Vermeer had made it known that he intended to leave the employ of the Respondent to pursue his interest in his fruit shop when his long service leave became due in 2008 and, as a result of this knowledge, the Respondent had put in place appropriate staff training arrangements to ensure a smooth transition. This, according to Mr Montague, meant a lighter work load on Mr Vermeer from about September 2006 as he had greater assistance in managing the operation.

Mr Montague's statement indicated that reference to the issue of domestic problems in the letter of resignation was his first knowledge of Mr Vermeer's claim. Mr Montague believed that had he been aware of Mr Vermeer's concerns, he 3 may have been able to make adjustments to Mr Vermeer's working arrangements to address them, particularly after the staff changes in September 2006.

Mr Montague's statement referred to an earlier approach by Mr Vermeer on behalf of another employee for that employee to be paid pro-rata long service leave upon leaving. That employee had 8 years' service, the request was denied and Mr Montague believed that Mr Vermeer had attempted to use this approach to establish a precedent for later use by himself.

SUBMISSIONS

Mr Miller referred the Commission to the principles developed by D.P. Bloomfield in Thompson v Pauls Ltd [2003] QIRC Comm. 335 (6 June 2003) 173 QGIG 593 and also to the decision of Shelly C in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Australian Weaving Mills [2003] T11016 (5 April 2004).

Whilst the approach taken in these matters seemed appropriate for the circumstances, I am guided by the comments of the Queensland Minister for Industrial Relations which he made to the Parliament on 22 March 2001 in the Second Reading Speech regarding the Industrial Relations and Another Act Amendment Bill which ushered in the changes to the Industrial Relations Act 1999 that established the entitlement at s. 43 referred to earlier.

He said:

"The question of what constitutes an 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 service is entitled to a proportionate payment on these grounds, this will be a matter for the QIRC to determine.".

Regarding the meaning of the term "Domestic or other pressing Necessity", I am of the view that the Macquarie Dictionary definition of "domestic" is appropriate in these circumstances. It states -

"… of or pertaining to the home, the household, or household affairs".

With respect to the term "pressing" the Macquarie Dictionary definition is again appropriate. It defines "pressing" as -

"… urgent: demanding immediate attention". and "necessity" as -

"… something necessary or indispensable".

The Macquarie Dictionary definition of the word "because" is:

"for the reason that: due to the fact that".

In these circumstances, I believe that for Mr Vermeer to succeed the Commission must find that he terminated his employment because it was imperative that he do so as failure to do so would, almost immediately, have had a seriously detrimental impact on his domestic or household circumstances.

The level of proof is on the balance of probabilities, the onus of proof rests with Mr Vermeer.

Firstly, I note that the evidence of relevant witnesses for the Respondent that Mr Vermeer was honest, trustworthy and reliable, was given after the witnesses became aware of Mr Vermeer's claim and his reasons for it.

Mr Vermeer's evidence on his domestic circumstances, both before and after his termination, was supported by the evidence of Mrs Vermeer and pointed to the imminent disintegration of the relationship. Mr Bain's evidence is helpful in assessing the state of affairs at the time. Mr Bain recalled Mr Vermeer responding to his question by saying "I suppose a marriage break-up is not a good enough reason".

Outside of this, the Respondent's evidence on this point was limited to the effect that Mr Vermeer rarely, if ever, spoke of his domestic affairs at work and, had he given the Respondent a proper understanding of his concerns, the Respondent may have been able to make changes to accommodate his needs. Moreover, the Respondent claimed that the toxic working environment referred to in evidence by Mr Vermeer was of his own making and, as such, could not reasonably have contributed to his domestic or other pressing necessity. 4

During the course of the hearing Mr Vermeer indicated that the issue of interpersonal workplace relationships was not gravamen to his case. However, in dealing with it, I will contrast the difference in this case between the "Domestic necessity" and the "other necessity". I accept the Respondent's position in relation to the reasons for the so-called "toxic" working environment. Mr Vermeer did not raise this matter with his employer or seek to have the issue redressed and the evidence of the Respondent's witnesses on this point, accepted here, was that much of the unpleasantness was created by Mr Vermeer.

This was entirely a workplace issue, one that reasonably could, and should, have been raised at work by Mr Vermeer if it was causing him difficulty.

If this situation did have an impact on Mr Vermeer's domestic situation, the point was not argued by Mr Vermeer nor was there any supporting evidence from Mrs Vermeer.

I find that the workplace relationships existing at relevant times did not create a pressing domestic necessity for Mr Vermeer to leave his employment. I further find that the workplace relationships did not give rise to some other pressing need to resign.

Had Mr Vermeer exhausted attempts to improve the situation and resigned because of a pressing need to extricate himself from the unpleasantness, this outcome may have been different.

It was a workplace matter and the necessity to resign would, in my view only, have arisen upon a failure to improve, or rectify, a workplace situation in the usual way.

Regarding the ground of domestic necessity, the evidence and submissions that Mr Vermeer had not been in the habit of discussing his domestic affairs with work mates or employers and did not raise the issue with his employer prior to resigning is not, in my view, detrimental to Mr Vermeer's case. Domestic circumstances, unlike workplace conflicts, can reasonably be considered private matters and how a person resolves domestic problems is, within reason, for that person to decide. The person, in this case Mr Vermeer, left his employment.

In the absence of any direct evidence to the contrary, I accept the evidence of Mr Vermeer and his wife that the relationship between them was strained and becoming more so with time. I also accept their assessment that the relationship could have ended completely had the employment situation not been addressed promptly.

The submissions regarding the belief held by the Respondent that Mr Vermeer left for reasons other than a domestic or pressing necessity are worthy of consideration. Whilst it was established that Mr Vermeer, subsequent to his termination, took a full-time role in his fruit shop, it was also established that from this role he enjoyed the flexibility to participate in family life to the extent necessary to avoid a breakdown of his marriage. However, there is no evidence that supports a conclusion by this Commission that the primary motivation for Mr Vermeer's resignation was to pursue a new venture and Mr Vermeer's domestic situation was somehow a secondary consideration.

Regarding the submissions that the employer had no opportunity to consider Mr Vermeer's situation and the evidence of earlier instances where the employer had allowed Mr Vermeer flexibility to accommodate family responsibilities. The industry in which Mr Vermeer worked is traditionally busiest in the early morning. It would have been reasonable in my view for Mr Vermeer to assume that his employer would find it difficult, if not impossible, to accommodate his needs on a permanent ongoing basis and it would have also been reasonable for Mr Vermeer to be reluctant to detail his personal marital circumstances to the extent that may have been necessary to justify a reconsideration of his hours by his employer.

The Respondent may well have attempted to assist Mr Vermeer had he asked. However, the fact that Mr Vermeer elected to resign rather than embark on talks with his employer that might or might not have alleviated his domestic problem does not, in my view, cause Mr Vermeer to fail to meet the test in s. 43(4)(b).

Having considered the evidence and submissions, I find that Mr Vermeer's decision to resign was reasonable and was taken because he had concluded that failure to do so would lead to the breakdown of his marriage.

Submissions for the Respondent indicated that the amount in question was $13,107.72.

The Respondent is to pay Mr Vermeer the sum of $13,107.72 taxed according to law within 22 days of the date of release of this decision.

I so order. Appearances: D.K. BROWN, Commissioner. Mr R.J. Vermeer on his own behalf. Mr D. Miller of Australian Industry Group, Industrial 5

Hearing Details: Organisation of Employers (Queensland) on behalf of the 2007 8 June Respondent.

Released: 25 June 2007

Government Printer, Queensland The State of Queensland 2007.