Erana v Fullmarr Hotels NQ Pty Ltd trustee for Fullmarr Hotels NQ Unit Trust t/as Sheraton Mirage Port Douglas [2013] ICQ 21

CITATION: Antonia Erana AND Fullmarr Hotels NQ Pty Ltd trustee for Fullmarr Hotels NQ Unit Trust t/as Sheraton Mirage Port Douglas (C/2013/35) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Antonia Erana AND Fullmarr Hotels NQ Pty Ltd trustee for Fullmarr Hotels NQ Unit Trust t/as Sheraton Mirage Port Douglas (C/2013/35) DEPUTY PRESIDENT O'CONNOR 28 November 2013 Appeal against decision of the Queensland Industrial Relations Commission - entitlement to proportionate long service leave under s. 43(4)(b) of the Industrial Relations Act 1999 - Where the Appellant said that he had terminated his employment with the Respondent either because of illness or incapacity or some domestic or other pressing necessity - Where the appellant was unable to demonstrate any error of law in the Commission's decision - Appeal dismissed. DECISION [1] This is an appeal against a decision of the Queensland Industrial Relations Commission ("the Commission") dated 9 August 2013. It is convenient to adopt the Commission's outline of the matter dealt with by the decision: "[1] This Decision concerns an application made by Mr Antonio Erana pursuant to ss. 43(3) and (4) & 278 of the Industrial Relations Act 1999 (the Act), for payment of pro-rata long service leave. It is common ground that Mr Erana was employed as a Laundry Attendant (casual) at the Sheraton Mirage Port Douglas (the Resort) between 7 March 2002 and 18 November 2011 when he resigned his employment. [2] It is also common ground that while the Resort was operated by different owners during this period, Mr Erana's employment was transmitted from one employer to the other, in accordance with the provisions of s. 69 of the Act, with his final employer being Fullmarr Hotels NQ Pty Ltd trustee for Fullmarr Hotels NQ Unit Trust trading as Sheraton Mirage Port Douglas (the Respondent). [3] In a prepared statement lodged in support of his application, Mr Erana said that he resigned his employment on the following grounds: • because of my illness; • pressing necessity; • occupational health and safety; and • financial hardship."1 [2] The grounds of appeal are: "(1) The decision made incorrect and not on on [sic] the established facts presented (2) Its discriminatory, unjustified and disadvantaged the applicant". [3] It is the submission of the Appellant (as best as it can be understood) that he is entitled to proportionate long service leave on the basis that he has completed seven years but less than 10 years of continuous service and that he satisfies the requirements of s. 43(4)(b) of the Act. [4] Section 43 of the Act relevantly provides as follows: "43 Entitlement (1) This section applies to all employees, other than seasonal employees. (2) An employee is entitled to long service leave on full pay of— (a) for the first 10 years continuous service—8.6667 weeks; and 1 Antonio Erana v Fullmarr Hotels NQ Pty Ltd trustee for Fullmarr Hotels NQ Unit Trust t/as Sheraton Mirage Port Douglas - (B/2012/12) - Decision <http://www.qirc.qld.gov.au>, as corrected by Antonio Erana v Fullmarr Hotels NQ Pty Ltd trustee for Fullmarr Hotels NQ Unit Trust trading as Sheraton Mirage Port Douglas - (B/2012/12) - Decision (Correction of Error) <http://www.qirc.qld.gov.au>. -- 1 of 3 -- 2 (b) if the employee has completed at least a further 5 years continuous service—another 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) …" [5] In addition, the Appellant, by reference to his application before the Commission, sought to agitate a claim in reliance on s. 53 of the Act. Under s. 53, an employee who has an actual entitlement to long service leave can request payment in lieu of being required to take their long service leave if they can satisfy the Commission that the payment should be made on compassionate grounds or on the grounds of financial hardship. [6] No evidence was put before the Commission to support an application under s. 53 nor was it raised as an issue on appeal. [7] In the hearing before the Commission, the Appellant raised workplace health and safety concerns within the laundry at the Resort. In support of those claims, the Appellant handed up extracts of the Work Health and Safety Regulation and the Electrical Safety Regulation 2002, together with fact sheets on the products used in the laundry and photographs of the washing machines used by the Respondent. [8] At no time was it established, either by evidence or by submissions, before the Commission or on appeal, how these claims supported the Appellant's application under s. 43 of the Act. [9] The onus is on the Applicant seeking to rely on the provisions of s. 43 of the Act to satisfy the Commission of his entitlement to a proportionate payment. [10] Under s. 341(1) of the Act, appeals to the Industrial Court of Queensland are limited to the narrow grounds of either error of law or excess or want of jurisdiction.2 [11] The appeal proceeded on the basis that, in order for the Appellant to succeed on the appeal, he must show that the Deputy President has erred in law. [12] The Appellant submitted at length that the decision of the Deputy President had not been made on a proper interpretation of the evidence before the Commission. In particular, it was submitted that the conclusions reached by his Honour could not have been made had the law been properly applied. [13] In QNR Pty Ltd v ETU (2005) 180 QGIG 724, his Honour President Hall wrote: "… a decision of fact may be attacked for error of law where the decision might not have been arrived at if the law had been properly understood and applied. A not dissimilar notion was developed in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. The essential idea is that where a tribunal of first instance reaches a conclusion of fact which could not have been reached if the law had been properly applied, the decision may be interfered with for 'error of law' even though the precise error is indiscoverable."3 [14] This is not such a case. The Appellant fundamentally misunderstood what he was required to prove in order to satisfy the requirements of s. 43 of the Act. [15] The Appellant, as was evident throughout the hearing before the Commission and during the appeal, was not able to demonstrate either illness or incapacity, nor that there was some domestic or other pressing necessity which left him with no option other than to resign his employment. 2 See The Electrical Trades Union of Employees Queensland v The President of the Industrial Court of Queensland [2007] 1 Qd R 1; see also House v The King (1936) 55 CLR 499, 504–5. 3 QNR Pty Ltd and Smokey Flats Timber Cutting Pty Ltd t/a Smokey Flats Group of Companies v The Electrical Trades Union of Employees of Australia, Queensland Branch (2005) 180 QGIG 724, 726. -- 2 of 3 -- 3 [16] The Commission accepted that the Appellant resigned his employment because he was upset about the way that his long service leave application had been dealt with and because he was "sick and tired" of working in the Resort laundry, believing that the working conditions and environment caused or contributed to his eye and sinus problems. [17] On any assessment of the evidence before the Commission, the Appellant did not establish an entitlement to receive a proportionate payment on the basis of either of the grounds set out in ss. 43(3) or (4)(b). [18] The Commission was entitled to conclude, as set out in paragraph [20] of the reasons for decision: "[20] At the end of the day, it is up to an Applicant who alleges they satisfy the provisions of ss. 43(3) and (4) of the Act to demonstrate to the Commission that they are entitled to pro-rata long service leave. Here, Mr Erana has gone nowhere near meeting the appropriate standard of proof. Apart from making some generalised assertions about being entitled to pro-rata long service leave because he has completed more than seven years' continuous service, Mr Erana has failed to produce any evidence to support his contention that his resignation was for the reason of illness or incapacity or some domestic or other pressing necessity. As such, his Application must fail." [19] The Commission has reached its conclusions of fact based on a proper application of the law. No error of law has been disclosed. [20] I dismiss the appeal. D. L. O'CONNOR, Deputy President. Hearing Details: 2013 November 27 Released: 28 November 2013 Appearances: The Appellant, on his own behalf. Ms M. Deaves and Ms G. Gibbons, for the Respondent. -- 3 of 3 --