Bridges v Bailey Creek Pty Ltd [2009] QIRC 41 (2009) 191 QGIG 425

[Extract from Queensland Government Industrial Gazette, dated 28 August, 2009, Vol. 191, No. 15, pages 425-428] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - proportionate payment for long service leave Colin Edward Bridges AND Bailey Creek Pty Ltd (B/2009/23) COMMISSIONER FISHER 20 August 2009 Application for orders - Proportionate payment for long service leave - Commencement date agreed - Continuous Service Agreed - Termination because of illness or incapacity - Date of termination in dispute - Evidence - Resignation - Effective date determined - Applicant has no entitlement - Application refused - Costs foreshadowed. DECISION This is an application by Colin Bridges under s. 278 of the Industrial Relations Act 1999 (the Act) for long service leave he claims he was entitled to under s. 43(4) of the Act. Section 43(2) provides an entitlement to long service leave after 10 years continuous service. Section 43(4) provides that an entitlement to a proportionate amount of long service leave arises on the termination of the employee's service on certain grounds where the employee has completed at least 7 years continuous service. Mr Bridges' application is made on the grounds that he terminated his service because of illness or incapacity. For the purposes of this application the respondent, Bailey Creek Pty Ltd (the employer) did not dispute the following:  The date Mr Bridges commenced employment - 26 November 2001;  Mr Bridges had continuous service with the respondent from 26 November 2001; and  Mr Bridges' services were terminated because of illness or incapacity. The dispute arises over the date Mr Bridges ceased employment with the employer. Mr Bridges contended that he resigned effective from 27 November 2008 whereas the employer submits the resignation took effect on 20 November 2008. The date when employment ceased is central to the determination of whether an entitlement to proportionate long service leave after 7 years continuous service exists. The Applicant's case Mr Bridges gave evidence that he had been on a program of light duties after undergoing surgery following a work- related injury. Mr Bridges had made a claim for workers' compensation which was accepted. The claim was finalised on 18 November 2008. The light duties on which Mr Bridges had been engaged seemed to be primarily focussed on mowing with some training and supervisory duties in the feed mill. Mr Bridges said that on 19 November 2008, Ian Hill, the employer's General Manager, gave him an ultimatum to drive a truck or else he would not have a job. Mr Bridges said that because of his injury he could not drive a truck. Mr Hill then told him to go home and think about the matter for one week. Mr Bridges said he understood the one week was to be taken as a holiday. Mr Bridges said he continued to work until the mower broke down later that day at which point he told his supervisor he was leaving and went home. On 20 November 2008 Mr Bridges telephoned Mr Hill to ask how much notice he had to give. Mr Hill told him he did not have to give any notice and did not have to return to work. Although Mr Bridges accepted that he gave his notice that day he did not understand that he was ceasing employment that day. He believed the cessation of his employment did not take effect until the end of his week's holiday on 27 November 2008. On 30 November 2008 Mr Bridges wrote to his employer tendering his resignation as of Thursday 27 November 2008. No reply was received. Mr Bridges contended that an employer who disputed the termination date could be reasonably expected to reply in writing to a resignation letter. The Respondent's case The respondent disputes much of the version of events given by Mr Bridges. Mr Hill agreed that Mr Bridges had given his resignation on 20 November 2008, however, Mr Hill did not accept that the resignation took effect on 27 November 2008 or that he had given Mr Bridges one week's holiday to think about his position. Mr Hill said he asked Mr Bridges if he could drive a truck. This was simply a question to ascertain Mr Bridges' capacity. It was not an ultimatum. When Mr Bridges replied that he could not, that was the end of the matter. Mr Hill said Mr Bridges continued to mow the lawns for a period after this conversation until he left work without notifying a supervisor. Mr Hill thought the conversation occurred on 17 November 2008 and Mr Bridges left work on 19 -- 1 of 4 -- 2 November 2008 but for the purposes of this hearing was prepared to accept that both events occurred on 19 November 2008. Mr Hill denied that he had given Mr Bridges one week to think about his position. He said there was simply no discussion around this point. In circumstances where Mr Bridges had only been attending work intermittently due to his rehabilitation program and had only just returned to work full-time it would not have made sense to give him a week's holiday at that point. Reference was also made to Mr Bridges' resignation letter where, after noting his inability to work full-time at full capacity, he stated: "As I had made this clear to Ian in the discussions and having given him the next week to reconsider his position in the matter ...". Mr Hill said the letter showed it was Mr Bridges who made an offer to the employer to consider his position, not vice versa. Further, Mr Hill described the telephone conversation in which Mr Bridges gave his resignation as "a very short, sharp, final termination at that point". There was no point where Mr Bridges gave him a week to consider his position. Mr Hill agreed that Mr Bridges asked him how much notice he was required to give to which Mr Hill replied that he did not have to give any and was not required to return to work. Mr Geoff Handley, a Consultant Animal Nutritionist, gave evidence that he was present with the site manager, Trish Benecke, when Mr Hill received a telephone call on 20 November 2008. Mr Hill walked away to take the call. Mr Handley said the call was "fairly short". Immediately on terminating the call Mr Hill told Mr Handley and Ms Benecke that the call was from Mr Bridges and he had quit. Mr Handley said that this advice led to a short discussion about the matter and both he and Ms Benecke expressed relief. This was because Mr Bridges had only been able to work a few days each week on light duties for a period of several months causing some inconvenience to the business. Mr Hill communicated Mr Bridges' resignation to a meeting of managers held later that day at which Mr Geoff Handley attended. Mr Stephen Hanley, who was also present at the meeting, gave evidence confirming this advice. Mr Hanley was the direct supervisor of Mr Bridges. Mr Hanley gave evidence that Mr Bridges was a long-term and valued employee. He said the business had gone to some lengths to find suitable alternative duties for Mr Bridges to undertake during his rehabilitation. Against that background Mr Hanley thought it would be out of character for Mr Hill to give Mr Bridges an ultimatum. Mr Hill referred to a statement he had given to a firm of Private Investigators who had been engaged by WorkCover Queensland in relation to a common law claim for damages filed by Mr Bridges. The Statement was taken on 21 November 2008. In that Statement Mr Hill said: "10. The claimant returned to work in September of this year until yesterday when he quit. At no stage did I terminate his employment.". Mr Hill relied on this Statement to support his argument that Mr Bridges resigned effective 20 November 2008. He said when he gave his statement to the Private Investigator he had not received the resignation letter from Mr Bridges and had no knowledge that Mr Bridges was claiming that his resignation was only to take effect one week later. Further, Mr Hill said that on telling the Private Investigator that Mr Bridges had resigned the Private Investigator queried whether it had been received in writing. After being advised to obtain a written resignation Mr Hill contacted Mr Bridges and asked him how many hours he had worked on his last day of work and to submit a letter of resignation. It was only after that conversation that Mr Bridges' letter of resignation was received. The proposition that the letter of resignation was written at the request of Mr Hill was not put to Mr Bridges in cross-examination. The Commission notes that Mr Bridges acknowledged having a telephone conversation with Mr Hill the following week. The content of that conversation was not disclosed. Mr Hill contended that the letter of resignation giving notice effective 27 November 2008 was constructed after Mr Bridges realised that he had fallen one week short of his 7 years' service to claim proportionate long service leave. Conclusion Both parties agree that Mr Bridges tendered his resignation on 20 November 2008. The issue for determination is the date of effect of the resignation - whether it was 27 November 2008 as claimed by Mr Bridges or 20 November 2008 as Mr Hill submitted. Supporting Mr Bridges' position is his letter of resignation to which he did not receive a reply or any advice from his employer disputing the effective date of termination until this application was made. -- 2 of 4 -- 3 Against that and in support of Mr Hill's position is:  Mr Hill's immediate advice to Mr Handley on 20 November 2008 that Mr Bridges had quit;  Mr Hill's advice to the managers' meeting on 20 November 2008 that Mr Bridges had quit;  Each of these advices was given without any rider, that is, that the resignation did not take effect until 27 November 2009;  Mr Hill's Statement to the Private Investigator only one day after Mr Bridges' resignation;  The reference in Mr Bridges' letter giving Mr Hill the next week to reconsider his position and no reference to the decision being made after having one week's holiday to consider his position. On balance I have decided that Mr Bridges resigned on 20 November 2008 with effect that day. I have reached that conclusion because both parties agree that Mr Hill told Mr Bridges that he was not required to give notice and need not return to work. More specific terms would be necessary to indicate that Mr Bridges' employment was to continue for another week. Here, where the employer has advised the employee there is no need to return to work after the giving or receiving of notice and no reference was made to a period of leave the employment can be taken to have concluded on 20 November 2008. Mr Hill also said in evidence that if Mr Bridges' resignation was not going to take effect for a week then it was his understanding that the notice period would had to have been worked. Unless there is an award provision or a term of a contract there seems to be no legal impediment to giving notice which takes effect during a period of leave. Mr Bridges' letter of resignation states that "I hereby tender my resignation … as of Thursday 27 November 2008". This indicates that the letter is the means by which the resignation is being given together with the date of effect of the resignation. On first blush it appears that no previous discussion about the resignation occurred. The letter does not confirm the discussion with Mr Hill on 20 November 2008 in which he tendered his resignation although reference is made to discussions with Mr Hill on 19 and 20 November 2008 where duties were raised. It is clear on the oral evidence of both Mr Bridges and Mr Hill that the conversation on 20 November 2008 only went to Mr Bridges' resignation. In the circumstances the Commission does not accept that the letter of resignation was notification of a resignation, rather it was confirmation of the resignation given and to take effect on 20 November 2008. Mr Bridges' letter of resignation also refers to giving Mr Hill a week in which to consider his position. This is in contrast to his oral evidence where he said Mr Hill had given him one week which he had understood to be a holiday. Given the resignation letter was written closer to the time of the events in question I think it is more likely to reflect Mr Bridges' position at that time. Further, for reasons given above, Mr Hill totally rejected having given Mr Bridges one week's leave. The Commission accepts that neither Mr Handley nor Mr Hanley was told directly by Mr Bridges of his resignation. However, the Commission considers that Mr Hill's contemporaneous advice to Mr Handley and Mr Hill's statement given the next day to the Private Investigator lends weight to the view that the resignation did not come with a later date of effect. I accept that Mr Bridges had intended to provide the required notice. However, when Mr Hill said that no notice was required Mr Bridges tendered his resignation effective that day. Only when he realised the financial impact of his decision did Mr Bridges decide that his resignation should take effect at a later date. For the above reasons the Commission determines that Mr Bridges resigned his employment on 20 November 2008 with effect from that date. Accordingly, Mr Bridges has no entitlement to a proportionate amount of long service leave. The application is refused. Costs The respondent foreshadowed an application for costs should Mr Bridges not succeed with his application. To assist the parties with any such application, given neither was professionally represented, the provisions of the relevant section of the Act are set out together with some case law. The relevant part of s. 335(1) of the Act provides: "(1) The court or commission may order a party to an application to pay costs, including witness and other expenses, incurred by another party only if satisfied - (a) the party made the application vexatiously or without reasonable cause;". To be successful in an application to pay costs the employer has to firstly establish that Mr Bridges made the claim either vexatiously or without reasonable cause: MIM Holdings Ltd v AMWU (2000) 164 QGIG 370. The word "vexatiously" means instituting a matter "with the intention of annoying or embarrassing the respondent for some collateral purpose": Gersten v Cape York Land Council Aboriginal Corporation (No. 2) (2004) 176 QGIG 153. "Without reasonable cause" is likely to mean a case which was "objectively recognisable as one which could not -- 3 of 4 -- 4 succeed at the time when the application was made": MIM Holdings Ltd (above). It is not permissible to make the application for costs on this ground with the benefit of hindsight following the decision. Establishing that an application has been made either vexatiously or without reasonable cause is problematic where, as here, there has been an argument on the facts requiring a determination by the Commission. If the employer is able to satisfy one of the grounds in s. 335(1)(a) of the Act then no claim can be made for the time taken to prepare the case: Cachia v Hanes (1994) 179 CLR 403. A claim can only be made for witness and travelling expenses. To this end, should the employer decide to proceed with a claim for costs, I will require an affidavit from Mr Hill detailing his travelling expenses and attaching proof of payment for expenses already paid to the witnesses for their attendance at the proceedings. If a claim for costs is to be pressed the employer is required to file such affidavit in the Industrial Registry and serve it on Mr Bridges within seven days of the date of release of this decision. On recept of the affidavit the Commission will list the matter for telephone hearing. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 10 June and 6 August Released: 20 August 2009 Appearances: Mr C.E. Bridges on his own behalf. Mr I. Hill on behalf of the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 4 of 4 --