Chapman v A1 Rubber (Aust) Pty Ltd [2019] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chapman v A1 Rubber (Aust) Pty Ltd [2019] QIRC 105 PARTIES: Chapman, Sandra of the Office of Industrial Relations (Applicant) v A1 Rubber (Aust) Pty Ltd (Respondent) CASE NO: B/2018/22 PROCEEDING: Recovery of pro rata long service leave DELIVERED ON: 5 July 2019 HEARING DATES: 4 February 2019 27 February 2019 (written submissions of Applicant) 22 March 2019 (written submission of respondent) 28 March 2019 (written submissions in reply of Applicant) MEMBER: Knight IC ORDERS: 1. A1 Rubber (Aust) Pty Ltd is to pay Anthony Alexander Bright the sum of $8,615.45 (gross), being the amount of pro rata long service leave owed to him, within 14 days. CATCHWORDS: INDUSTRIAL LAW – RECOVERY OF PRO RATA LONG SERVICE LEAVE – Employee resigned from employment after more than eight years – whether the employee is entitled to proportionate long service leave – employee terminated the employment because of work-related stress LEGISLATION: CASES: Industrial Relations Act 2016 Department of Education and Industrial Relations v Sandoz Pty Ltd (2008) 188 QGIG 151 Gibbons v eBet [2015] QIRC 007 AWU v Sunshine Coast Private Hospital (2003) 172 QGIG 1097 -- 1 of 14 -- 2 APPEARANCES: Ms S. Chapman, instructed by the Office of Industrial Relations Mr J. Randel, Director of A1 Rubber (Aust) Pty Ltd Reasons for Decision [1] This is an application for an order for the payment of unpaid wages under s 475 of the Industrial Relations Act 2016 ("the Act"). The application was made by Ms Sandra Chapman of the Office of Industrial Relations, a duly appointed inspector under the Act ("the Applicant"). [2] The Applicant seeks a decision that A1 Rubber (Aust) Pty Ltd ("the Respondent") pay Mr Anthony Bright the sum of $8,615.45 (gross), being the amount of pro rata long service leave said to be owed to him by the Respondent. [3] It is submitted Mr Bright is entitled to pro rata long service leave in accordance with s 95(4)(b)(i) of the Act, which provides for a proportionate payment to an employee with more than seven but less than ten years' service where the employee terminates their employment due to illness. Background [4] It is not in contention that Mr Bright was in continuous employment with the Respondent from 5 February 2007, until his resignation took effect on 17 September 2015. In summary: (a) the employee was employed by the Respondent on 5 February 2007; (b) he was initially employed as a full-time supervisor, but was promoted to Warehouse Manager in 2009; (c) his duties included supervising two or three employees, prioritising orders, locating stock, packing orders, loading and unloading stock with a forklift and interacting with management; and (d) on 20 August 2015, Mr Bright tendered his written resignation from the Respondent's employment, and his resignation took effect on 17 September 2015. [5] Based on that period of employment, Mr Bright worked for 8.6167 years. The proportionate long service leave entitlement, based on the provided information and calculated in accordance with s 95 of the Act is 7.4678 weeks. [6] At the time when Mr Bright ceased working for the Respondent, he was paid $1,153.00 (gross) per week. [7] His proportionate long service leave payment is calculated to be $8,615.45 gross. There is no dispute about that figure. -- 2 of 14 -- 3 [8] The only issue to be determined is whether the employee is entitled to be paid that amount by the Respondent in accordance with s 95(4)(b)(i) of the Act. Legislative Provisions [9] 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. [10] 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— (a) if the employee has completed 10 years' continuous service—8.6667 weeks; and (b) 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— (a) the employee's service is terminated because of the employee's death; or (b) the employee terminates the service because of— (i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer— (i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or (ii) unfairly dismisses the employee; or (d) the termination is because of the passing of time and— (i) the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years' continuous service; and (ii) the employee was prepared to continue the employment with the employer. -- 3 of 14 -- 4 The nature of the Mr Bright's employment from 2007 to 2015 [11] As best I can tell, Mr Bright's employment was largely uneventful until he became unwell in or around May 2015. [12] In his evidence to the Commission, Mr Randal, CEO of the Respondent, maintained he and Mr Bright had a mutually respectful and friendly working relationship. He said they would speak to each other on multiple occasions throughout the day given the nature of their respective roles. [13] He stated that when Mr Bright took sick leave in mid-May 2015, he did not think anything of it – that is, "people get sick all the time". After receiving a medical certificate that indicated his illness had something to do with work related stress, he "thought it was strange as there were no indicators from Mr Bright to suggest he was stressed". Mr Bright and his illness from May 2015 [14] The evidence of Mr Bright's illness from May 2015 until his resignation took effect on 17 September 2015 and beyond is summarised below. [15] In respect of when he first started to feel unwell, Mr Bright stated: 4. In approximately April 2015 we were in the process of relocating to a new warehouse in Binary Street, Yatala. The relocation involved significant stress and turmoil due to the delays and disruption…During that time I could feel myself getting worked up and I was feeling sick in my stomach. I was feeling so anxious and sick from the pressure of moving warehouse that my appetite diminished. I constantly felt like I was going to burst into tears as the pressure built up… … 5. I noticed I was tripping and losing my coordination more than usual. I was having trouble sleeping at night as my mind was going around like a cement mixer. Each morning when I drove up the road towards work to unlock, I felt waves of anxiety and sickness in my stomach. These symptoms continued and in mid May 2015 I went to my GP, Dr Christopher Jones at Harbourtown Medical Centre, Arundel. [16] On Monday 18 May 2015, Mr Bright consulted Dr Christopher Jones at Harbourtown Medical Centre. At the conclusion of the appointment, Dr Jones signed a medical certificate expressing the opinion that Mr Bright was "suffering from work related stress and is unfit for work" from 18 May to 31 May 2015. In the accompanying consultation notes for this appointment, Dr Jones wrote: Consultation Notes work problems; direct manager bullying and aggressive/unreasonable long term problem patient distressed/poor sleep/headaches discussed at length … see SOS, review 1w -- 4 of 14 -- 5 [17] Mr Bright told the Commission he continued to visit Dr Jones on a regular basis in the months that followed. He stated he was reluctant, initially, to take any medication to assist with his depression, anxiety and panic attacks, but eventually agreed to take a daily dose of Pristiq anti-depression medication. He was also referred to Mr Peter Barrett, a psychologist at Equilibrium Health, under a mental health plan on or around 5 June 2015. [18] From the period 18 May through to 10 September 2015, the Harbourtown Medical Centre consultation notes confirm Mr Bright attended appointments with Dr Jones on at least twelve separate occasions. The records for those appointments confirm Mr Bright was being treated for depression, anxiety and panic attacks. [19] As best I understand, during this period Dr Jones issued seven standard medical certificates confirming Mr Bright was suffering from work related stress and/or anxiety and depression caused by workplace bullying. The certificates were issued on: • 18 May 2015; • 28 May 2015; • 2 June 2015; • 10 July 2015; • 24 July 2015; • 12 August 2015; and • 27 August. [20] In early June 2015, Dr Jones also prepared a workers' compensation medical certificate which was duly lodged with WorkCover. [21] Mr Bright provided his employer with a letter of resignation dated 20 August 2015, noting it would take effect from 17 September 2015. [22] The consultation records prepared by Dr Jones for the two appointments occurring immediately prior to Mr Bright submitting his letter of resignation to his employer include: Friday 24 July 2014 reviewed mental health as planned tolerating Pristiq Reason for visit: Anxiety/Depression Wednesday 12 August 2014 reviewed ongoing mental health issues at length see Progress Report… Reason for visit: Anxiety/Depression [23] Mr Bright told the Commission that before handing in his resignation to his employer, he arrived at the conclusion that he was not well enough to return to work and did not -- 5 of 14 -- 6 think he would be able to cope with the stress. He stated that he decided to resign due to being unwell and wanted to concentrate on improving his health. [24] In his resignation letter dated 20 August 2015, Mr Bright noted: As you are aware I have been suffering a medical condition and been unable to work since mid- May 2015. I have been undergoing regular medical and counselling treatment but it has become necessary for me to make a decision for my future health. As I will not be fit to return to work in the near future I have come to the decision to submit my resignation as of 17 September 2015. The decision will allow my position to be released for A1 Rubber to be able to recruit a replacement. [25] In the week after Mr Bright submitted his resignation, he attended a further appointment with Dr Jones. The consultation records for an appointment on Thursday 27 August 2015 note: handed notice in at work; still feeling anxious continues Psychology care discussed plans for future at length routine path due Reason for visit: Anxiety/Depression [26] Mr Bright's attendance at appointments with Dr Jones at the Harbourtown Medical Centre for anxiety and depression continued until 8 October 2015, whereafter he departed on some travel overseas to Germany to visit his son. He returned to Australia in early December 2015 and recommenced his appointments with Dr Jones on 10 December 2015. [27] In correspondence about Mr Bright and his illness, dated 16 December 2015, Dr Jones noted: I have been treating Mr Bright since May [2015] for work related stress and anxiety. This has comprised of medications, psychology care and regular clinical review. In addition, I signed him off as sick due to this condition. His symptoms progressed such that he has been unable to return to that employment and he is now being assessed for Centrelink payments. His anxiety, depression and panic attacks are persisting, and we are trying to help him resolve these symptoms. [28] Mr Bright told the Commission that in addition to being treated by Dr Jones, he attended appointments with Mr Barrett every four to six weeks under a mental health care plan, during this period. He stated that he continues to meet with his psychologist and estimated he had attended some 25 psychological sessions of a 50-minute duration. [29] In a report concerning Mr Bright which was prepared by Mr Barrett on 5 December 2016, he notes: Mr Anthony Bright commenced undertaking psychological intervention on the 5 th of June 2015 at Equilibrium Health (EH) under a mental health care plan (MHCP) following a referral by his treating medical practitioner Dr Christopher Jones. -- 6 of 14 -- 7 … Mr Bright appears to meet the diagnostic criteria for having depressive and anxiety disorders in accordance with that which is outlined in the Diagnostic Statistical Manual of Mental Disorders Fifth Edition (DSM-V). … Mr Bright has been pro-active and compliant in the formulation and execution of his therapy plan and has attempted to undertake assigned ‘homework’ tasks to the best of his ability. However, despite ongoing medical treatment coupled with psychological treatment, Mr Bright's mental health symptoms remain stable and seemingly resistant to that treatment. … Hence, I have formed the opinion that Mr Bright was completely incapacitated and unable to return to his employ due to ongoing workplace bullying and harassment, to the degree where Mr Bright was forced to resign from that employment. Mr Bright Did Not Resign Due To Illness [30] The Respondent disputes Mr Bright's entitlement to pro rata long service leave on the basis that he did not resign due to an illness. Instead, the Respondent maintains Mr Bright resigned his employment because: (a) Mr Bright unreasonably got angry at the Respondent as he didn’t appreciate the fact that the Respondent's Human Resources manager made an expected attempt to make contact directly with him whilst he was on 17 weeks leave. This correspondence offered well wishes and support in any way Mr Bright wanted, but there remained no direct communication at all which was puzzling since he was obviously leaving his house every week to see the doctor, attend the gym and paint [sic] the house according to the consultation Psychologist session notes; (b) Four weeks into Mr Bright’s sick leave, Dr Jones changes the medical certificates from work related stress to workplace bullying and harassment. Following this, one day later a Workers Compensation claim was lodged by Mr Bright alleging workplace bullying and harassment. It is to suspect that Mr Bright considered his position untenable given the false and misleading allegations he had made in his WorkCover claim. (c) Mr Bright wanted to spend time with his son and granddaughter who had left the country. [31] Mr Randall submitted three statements during the proceedings setting out the reasons why he considered Mr Bright was not entitled to be paid pro rata long service leave. [32] In support of his position, Mr Randall argued: • Dr Jones developed a prejudice against the employer in circumstances where the respondent's HR Manager was attempting to proactively manage Mr Bright's extended absence from work; • Dr Jones rejected the respondent's involvement in Mr Bright's rehabilitation and return to work because he had concluded representatives of the respondent were bullying him; • Mr Bright's lodgement of a WorkCover claim suggested it "was about the money"; -- 7 of 14 -- 8 • Mr Bright repeatedly failed to respond to attempts by representatives of the respondent to contact him about his condition and his absence from work, along with its offers of assistance; • Mr Bright's unwillingness to discuss his issues with the respondent demonstrated his intent to defraud the company; • Mr Bright decided he wanted to move on from the respondent and "take" as many entitlements with him as possible which is supported by the timing of the medical certificates prior to his resignation and his subsequent application for pro rata long service leave. [33] Other events relied on by Mr Randall in support of his position include: • Mr Bright lied to his psychologist when he told him that he had previously raised concerns about bullying by his employer; • the lying demonstrates a "victim mentality that is setting up the Psychologist and his GP to believe he is the victim of an immoral company"; • in late June (2015) Mr Bright's psychology notes reveal he has mixed feelings about going back to work, yet he still has the capacity to attend the gym and paint areas of his house; • by mid-July, his psychologist's notes confirm he is making steady progress, but he is still handing in medical certificates to receive sick leave; • the day following his termination, Mr Bright takes a depression, anxiety and stress score measure and is assessed as normal; • Mr Bright did not resign due to stress and anxiety in circumstances where he was well enough to travel to Germany in October 2015; • there is a lack of consistent ongoing treatment by Mr Bright's GP or his psychologist post termination; and • Mr Bright was successful in convincing his GP that Mr Randal ran an immoral company that bullied its staff such that the GP continued to issue medical certificates for Mr Bright until such time as all of his sick leave entitlement was used up, despite being fit for suitable duties in circumstances where his illness did not persist at the same level for longer than 7 – 8 weeks. [34] The Respondent also raised questions in respect of Dr Jones capacity to make a determination as to Mr Bright's illness and its causes, in circumstances where he did not take steps to obtain further information. Mr Bright's illness and s 95(4)(b)(i) - applicable legal principles [35] Having regard to the facts of this application and the relevant authorities, including a helpful and recent decision of Neate IC in Gibbons v eBet Ltd,1 the following questions are relevant to determining whether an employee has an entitlement to proportionate payment for long service leave under s 95(4)(b)(i):2 (a) Was the reason for the termination one which fell within the section? 1 [2015] QIRC 007. 2 AWU v Sunshine Coast Private Hospital (2003) 172 QGIG 1097, 1101-1102. -- 8 of 14 -- 9 (b) 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? (c) 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? (d) Did the reason claimed cause the employee to terminate his or her employment? (e) Did the reason claimed affect the employee in relation to the particular service he or she terminated? (f) 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? Consideration of the evidence [36] As was reinforced by Neate IC in the abovementioned case, it is essential that Mr Bright provide clear evidence to the Commission to enable the questions posed to be answered in the affirmative.3 Reason for termination [37] On or around 20 August 2015, Mr Bright submitted a notice of resignation to Mr Randall, advising that his resignation would take effect on 17 September 2015. Contained within the resignation letter was a brief explanation as to why he was resigning, namely, "[a]s I will not be fit to return to work in the near future, I have come to the decision to submit my resignation as of 17 September 2015". [38] Eight days prior to the preparation of his resignation letter (Wednesday, 12 August 2015), Mr Bright attended an appointment with Dr Jones. In the medical practice consultation notes for this appointment, the 'reason for visit' is recorded as anxiety and depression. [39] In his evidence to the Commission, Mr Bright stated that he realised around this time that he "would not be well enough to return to work as my mental state was like a roller coaster and I would not be able to cope with the work". [40] Mr Bright attended a further appointment with Dr Jones on 27 August 2015, seven days after presenting his resignation letter to his employer. Again, the 'reason for visit' is recorded as anxiety/depression. Additional notes in the medical consultation records include a reference to Mr Bright handing in his notice, but still feeling anxious at that time. 3 Department of Employment and Industrial Relations v Sandoz Pty Ltd (2008) 188 QGIG 151. -- 9 of 14 -- 10 [41] Around the same period Mr Bright was also attending consultations with a psychologist he had been referred to by Dr Jones. During the proceedings, I adjourned the matter to provide the parties with an opportunity to determine whether they wished to tender any records in their possession relating to Mr Bright's appointments with his psychologist. In the end, the Commission was not provided with a copy of any notes arising out of Mr Bright's psychology appointments, other than the report prepared by Mr Barret and those attached to Dr Jones' statement. [42] In a letter prepared by psychologist, Mr Barrett, dated 5 December 2016, Mr Bright is reported as appearing "to meet the diagnostic criteria for having a depressive and anxiety disorder". [43] Dr Jones, in a letter prepared for the Office of Industrial Relations on 16 December 2015, reported that Mr Bright's symptoms progressed "such that he has been unable to return to that employment…" [44] During the proceedings, the Respondent raised questions in respect of Dr Jones capacity to effectively diagnose Mr Bright in relation to his illness and the reasons for his illness, in circumstances where Dr Jones (and Mr Bright's treating psychologist) may not have been apprised of all the information relevant to Mr Bright's claims of workplace stress. [45] The Respondent also raised questions about the severity of Mr Bright's illness against a backdrop where it is suggested Mr Bright may have been lying to his GP and psychologist, with the objective of accessing all his entitlements, including an extensive bank of sick leave, before resigning his employment. [46] Dr Jones provided expert witness evidence during the proceedings about Mr Bright's illness. During the proceedings he confirmed his qualifications included a Bachelor of Medicine, a Bachelor of Surgery and various other Diplomas and memberships of professional medical organisations. [47] In the absence of any other reliable or expert evidence suggesting otherwise, I am satisfied Dr Jones was more than capable of diagnosing and treating Mr Bright. [48] Moreover, having regard to the summary of medical evidence set out above and earlier in this decision, I accept the evidence of Dr Jones and Mr Barrett that Mr Bright was suffering from an illness, namely depressive and anxiety disorder, at the time he submitted his resignation. Was the reason genuine? [49] As highlighted above, the Respondent in this matter has submitted the real reason for Mr Bright's resignation was simply his desire to no longer work with his employer, in combination with a motivation on his part to take advantage of a bank of sick leave he had accrued over the years, and his unhappiness at his employer's attempts to engage with him during his illness. The Respondent has also suggested Mr Bright wanted to spend time with his son and granddaughter overseas. [50] In support of the Respondent's concerns as to the genuineness of Mr Bright's claimed reasons for resignation, it points to his reluctance to engage with his employer during -- 10 of 14 -- 11 the period he was on sick leave, overseas travel undertaken by him approximately six weeks after he submitted his resignation letter and inconsistencies in the medical notes or assessments undertaken by his treating specialists in respect of his condition in the weeks before and immediately after his resignation. [51] The difficult I have with the Respondent's submission is that in the period before he submitted his resignation, Mr Bright attended at least eleven appointments with Dr Jones which were directly related to his depression and anxiety. At the same time, he was also attending appointments with a psychologist. [52] After submitting his resignation, Mr Bright continued to attend appointments, commenced a period of travel to Germany and resumed his attendance at appointments with Dr Jones after returning from overseas for continued treatment for depression and anxiety. [53] It is useful to highlight that Mr Bright also attended more than twenty additional appointments with Dr Jones relating to his depression and anxiety, following his resignation and after he returned from his overseas travel. [54] In his evidence to the Commission, Mr Bright explained that he booked his travel after handing in his resignation. He explained that he went to Germany to be with his son and family for support and a change of environment. He said that his son was worried about his health. His evidence is that he mentioned the travel to his GP and psychologist and both were supportive. He recalled his doctor suggesting that he should stay longer. [55] Mr Bright told the Commission that he declared his illness to his travel insurer and sought guidance from his GP as to how best to handle his symptoms while he was travelling and overseas. Travel to Germany [56] The Respondent has also attempted to highlight some inconsistencies in the evidence between Mr Bright's recollection of his conversation with his GP about his travel to Germany and Dr Jones' ability to remember the conversation(s). [57] I note Dr Jones' explained to the Commission that he does not record every aspect of his conversations with his patients in his notes. During the proceedings he did recall Mr Bright travelling overseas. It is reasonable, in circumstances where Dr Jones treated various other patients in the same period, that he would not be able recall every detail of his discussions with Mr Bright. [58] In any event, having regard to the medical evidence before the Commission, I am not inclined to accept the Respondent's contentions that Mr Bright's travel to Germany and the improvement in an assessment in the weeks prior to the travel, is proof that his condition was not as bad as he was portraying to his GP and psychologist at the time of his resignation some six weeks earlier. [59] Neither do I accept that the real and motivating factor for Mr Bright's resignation was his desire to spend time with this son. -- 11 of 14 -- 12 [60] Dr Jones told the Commission that it is possible to have a physical or emotional illness and still make future travel plans. He was not surprised when Mr Bright advised him about his proposed travel. He was able to recall that Mr Bright's level of anxiety and depression was still significant at the time. No contact with Employer [61] During the proceedings, the Respondent also raised concerns about Mr Bright's unwillingness to engage with his employer and the nominated HR contact while he was on sick leave. The suggestion from the Respondent appeared to be that the lack of contact on Mr Bright's part was proof or at least an indication that he did not intend to return to his role, and was simply exhausting his statutory entitlements before handing in his resignation in August 2015. [62] Certainly, the materials before the Commission indicate a HR representative from the Respondent took steps to contact Mr Bright and Dr Jones with a view to having discussions around Mr Bright's condition, the reasons for it and the circumstances in which he might return to work. [63] As best I understand it, the attempts by Mr Bright's employer to meet with him and discuss any issues he had with the workplace were rejected. Likewise, repeated attempts by his employer to obtain Mr Bright's authorisation to access his medical records were also rejected. [64] It seems the actions taken by Mr Bright's employer, rightly or wrongly, to engage with him in respect of his sick leave, claims of bullying and a return to work were perceived by Mr Bright and possibly Dr Jones as being a continuation of a pattern of bullying he had reported on the part of the employer. [65] During this period, it is the case that Mr Bright also lodged a workers' compensation claim for work related stress. [66] The Respondent relied heavily on the fact that the claim was ultimately rejected by WorkCover and the Workers' Compensation Regulator. As best I understand it, the claim was rejected on the basis that it was excluded from the definition of injury on account of the actions purportedly taken by management in response to Mr Bright's claims of bullying, being assessed as reasonable management action. [67] Notwithstanding the outcome of the workers' compensation claim lodged by Mr Bright, it does appear, having regard to the Respondent's submissions, that the employer was somewhat aggrieved that Mr Bright alleged his workplace stress and the subsequent diagnosis of depression and anxiety had arisen due to bullying whilst in the employ of the Respondent. [68] In response, the Applicant has submitted Mr Bright was entitled to access his accrued sick leave entitlements while was he was unwell. Moreover, the success or otherwise of a separate workers' compensation claim is not relevant and has no bearing on these proceedings. I must agree. [69] The purpose of these proceedings is to determine whether Mr Bright has an entitlement to pro rata long service leave in accordance with s 95(4)(b)(i) of the Act. -- 12 of 14 -- 13 No blame needs to be attached to either Mr Bright or Mr Randall in respect of the origins of Mr Bright's depression and anxiety. All that Mr Bright needs to demonstrate is that he terminated his employment because of his illness or capacity. [70] Although I accept Mr Bright may well have desired to visit his son and extended family in Germany, and was concerned about the way in which his employer had engaged with him during his period of sick leave and prior to commencing sick leave, I am satisfied the main and motivating reason for the eventual termination of his employment was the depression and anxiety he was experiencing at the time of his resignation. Did the illness impact Mr Bright’s ability to perform his role? [71] Prior to taking his sick leave, Mr Bright described how each morning as he drove up the road towards work to unlock the premises, he would feel waves of anxiety and sickness in his stomach. Having taken a long period of sick leave, he explained how he arrived at the conclusion that he did not think he would be well enough to return to work and he did not think he would be able to cope with the stress due to his mental state. [72] In his evidence to the Commission, Dr Jones explained: The gentlemen is suffering from anxiety and depression, which I – which I believe is due to workplace bullying. …one of the paths of treatment is to remove the person from that situation. I use the analogy like if you have your hand in a fire, that’s causing you pain and damage. You would remove the hand from the fire, and immediately let the symptoms resolve. However, the underlying damage is still there. [73] In his correspondence dated 5 December 2016, Mr Barrett confirmed that despite ongoing medical and psychological treatment, Mr Bright's mental health symptoms remained stable and seemingly resistant to treatment. He noted: …I have formed the opinion that Mr Bright was completely incapacitated and unable to return to his employ due to ongoing workplace bullying and harassment, to the degree where Mr Bright was forced to resign from that employment [74] On the available evidence, it is difficult to come to any other conclusion other than Mr Bright's depression and anxiety directly impacted his ability to perform his role. As such, I accept that his inability to perform his role due to his depression and anxiety was the reason he ultimately terminated his employment. Conclusions Was the reason genuine and was it the real and motivating factor that led to termination? [75] Having considered the evidence and applicable legal principles, I conclude that: (a) Mr Bright worked for A1 Rubber (Aust) Pty Ltd on a continuous basis between 5 February 2007 and 17 September 2015. The total period of employment undertaken by Mr Bright is 8.6167 years; -- 13 of 14 -- 14 (b) from as early as May 2015, Mr Bright was suffering from stress, which was described by Dr Jones as anxiety and depression, constituting an illness for the purpose of s 95(4)(b)(i) of the Act; (c) the illness was directly related to and prompted by Mr Bright's circumstances at work, as well as the subsequent attempts by his employer to engage with him during his period of sick leave; (d) although there may have been some other minor contributing factors to Mr Bright's decision to terminate his employment, I am satisfied his depression and anxiety were the real or motivating reason; that is, his illness, caused him to terminate his employment; and (e) the situation of Mr Bright at the time of his termination was one a reasonable person might have felt compelled to resolve by terminating their employment. [76] The application under s 475 of the Act succeeds by reference to s 95(4)(b)(1) of the Act. Orders [77] I make the following Orders: 1. A1 Rubber (Aust) Pty Ltd is to pay Anthony Alexander Bright the sum of $8,615.45 (gross), being the amount of pro rata long service leave owed to him, within 14 days -- 14 of 14 --