Department of Employment and Industrial Relations v Sandoz Pty Ltd [2008] QIRC 48 (2008) 188 QGIG 151

[Extract from Queensland Government Industrial Gazette, Dated 30 May 2008, Vol. 188, No. 5, pages 151-160] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc. Department of Employment and Industrial Relations AND Sandoz Pty Ltd (B/2007/68) COMMISSIONER FISHER 21 May 2008 Application unpaid wages - Proportionate payment long service leave - Termination because of employee's illness or incapacity - Employer opposed because employee had obtained employment with another company - Illness an issue after failed negotiations - Chronology of events - Evidence - Medical evidence - Employee resigned for health reasons - Issue whether illness caused employee to terminate employment - Finding employee sought to rationalize his termination by relying on his illness to claim payment for proportionate long service leave - Employee's discontent with employer and not illness motivated decision to resign - Determined employee does not have an entitlement to a proportionate payment for long service leave - Application refused. DECISION This is an application by David Cox, a duly appointed Inspector of the Department of Employment and Industrial Relations (DEIR), Southport, seeking an order under s. 278 of the Industrial Relations Act 1999 (the Act) that Sandoz Pty Ltd (Sandoz/the Company) pay an amount of $12,521.07 in unpaid wages to Paul Mulvihill. The underpaid wages is payment in lieu of proportionate long service leave said to arise under s. 43(4)(b)(i) of the Act. This section enables proportionate long service leave to be paid where an employee terminates their service because of the employee's illness or incapacity. Here, Mr Cox relies on Mr Mulvihill's illness diagnosed as an adjustment disorder to give rise to the entitlement. The application was vigorously opposed by Sandoz which claimed that Mr Mulvihill terminated his employment because he had obtained employment with another company. Illness was a ruse employed by Mr Mulvihill after his negotiations with Sandoz over payment of proportionate long service leave failed. To understand the competing arguments it is necessary to outline the chronology of events that led to Mr Mulvihill terminating his employment and certain events that happened afterwards. Chronology of Events Mr Mulvihill commenced employment with Hexal Pty Ltd (Hexal) on 28 September 1998 as a Pharmacy Account Manager. In June 2005 the Novartis Group of Companies acquired Hexal and Hexal merged with Sandoz. On 11 November 2005 Mr Mulvihill accepted employment with Sandoz on the same conditions he had with Hexal. His position was that of Area Sales Manager. After the merger Mr Mulvihill became concerned about his employment with Sandoz. On 11 January 2006 Sandoz' Human Resources Manager, Jackie Steele, circulated an email to staff advertising internally the vacant position of Queensland Field Services Manager. Mr Mulvihill replied seeking details of the salary for the position. In a separate email that day Mr Mulvihill also asked Ms Steele about Sandoz' long service leave policy. Ms Steele responded the next day to both emails. With reference to the salary enquiry, Ms Steele said that an additional secondment allowance would be attached to the role. On the long service leave matter, Ms Steele advised that Sandoz complied with local legislation. In response to a further email from Mr Mulvihill concerning the number of weeks of entitlement and the qualifying period for long service leave, Ms Steele specified his entitlement after 10 continuous years' service and provided a web link to Wageline. The issue of long service leave went into hibernation until the end of 2006. On 3 August 2006 the Human Resources Co-ordinator of Sandoz emailed staff advising of a vacancy for the position of Key Account Manager, Queensland. On 18 August Mr Mulvihill emailed Ms Steele advising of his interest in the position. She said that Mr Mulvihill could submit an application for the position. For reasons Mr Mulvihill could not explain he did not ultimately submit an application. Mr Mulvihill claimed he started to become stressed in August 2006 due to stock shortages being experienced by Sandoz. He said that customers were starting to complain because Sandoz could not meet orders. Although Dr Stokes, the General Manager of Sandoz, acknowledged stock shortages were a problem, his evidence, supported by graphical information showed that stock shortages, though still unacceptably high, had improved from January to August 2006. The stock availability issue was recognized by Sandoz through reduced sales targets for all sales staff. -- 1 of 9 -- 2 October/November 2006 Some time before October 2006 Mr Rakeesh Raj, the former National Sales Manager for Sandoz and now working with a competitor, sanofi-aventis Australia Pty Ltd (sanofi), told Mr Mulvihill that a training position would be coming available at sanofi within the next few months. Mr Mulvihill said he was interested in the position because he was a trained teacher and had been involved in training both with Hexal and Sandoz. Mr Mulvihill said in oral evidence that he began to look for alternative employment in late October 2006. He had seen the sanofi training position advertised through a firm of recruitment consultants, Tanner Menzies, and submitted an application for it. However, other oral and documentary evidence before the Commission shows that Mr Raj referred Tanner Menzies to Mr Mulvihill on 31 October 2006 and Ben Healan of Tanner Menzies contacted him to arrange an interview. As a result Mr Mulvihill emailed his resumé to Mr Healan on 1 November 2006. The evidence also shows that on 1 November 2006 Tanner Menzies and sanofi made arrangements for Mr Mulvihill to travel to Sydney for an interview with sanofi on 3 November 2006. The arrangements were made to suit particular travel times requested by Mr Mulvihill. Mr Mulvihill was interviewed by Mr Healan on the morning of 2 November 2006. That afternoon Mr Mulvihill attended his long time General Practitioner, Dr Hazell, with flu symptoms. During that consultation Mr Mulvihill outlined a number of complaints about his work to Dr Hazell. These were that he was dissatisfied with his work and extra demands; he was under pressure because of stock shortages; he had been overlooked for a management position and there was new management. Dr Hazell issued Mr Mulvihill with a medical certificate for 3 working days because he was suffering from "viral illness/influenza". Mr Mulvihill flew to Sydney as arranged on 3 November 2006 for the interview with sanofi. Before he left, Mr Mulvihill left a voice mail message on Ms Steele's mobile telephone that he was sick. It was unusual for Ms Steele to receive such advice as she was not Mr Mulvihill's supervisor. Mr Mulvihill said that although he was unwell he decided to attend the interview in Sydney because it would not be a "good start" if he told them he could not go because he was sick. Mr Mulvihill said that he was too unwell to attend work and face customers for a whole day. On 6 November 2006 Sandoz announced the appointment of Kristi Robinson to the position of State Sales Manager Queensland. Ms Robinson had previously been appointed to the position of Queensland Field Services Manager. Three days later Mr Mulvihill telephoned Dr Stokes expressing his concern that the State Sales Manager position had not been advertised and that he had not been asked to join a leadership committee formed within Sandoz. He also said that he told Dr Stokes of his recent time off work on sick leave. Mr Mulvihill said that by being overlooked for these positions he felt his future with Sandoz was limited and this view was confirmed after his discussion with Dr Stokes. Mr Mulvihill felt that he was being encouraged to seek alternative employment as Dr Stokes had told him that it was time to look around as Sandoz could not give him the type of role he was looking for. He said that the conversation was extremely stressful and upsetting to him given his contribution to the company over the last eight years. Dr Stokes' recollection of the conversation is a little different. He denied being advised of Mr Mulvihill's recent ill health or time off work. He acknowledged that Mr Mulvihill raised the filling of the State Sales Manager position without advertisement and said he understood his disappointment. At that point Mr Mulvihill asked Dr Stokes about where Sandoz was going and whether he had a place in that Company. Dr Stokes said he told Mr Mulvihill that he was one of Sandoz' top sales people and he was valued, however, it was important for Mr Mulvihill to be happy in his work. He asked Mr Mulvihill to consider what he wanted to do in his career and to assess whether the Sandoz culture was a good match with him. He concluded the conversation by saying that he hoped Mr Mulvihill would commit to Sandoz. The following day Mr Mulvihill emailed Dr Stokes thanking him for the open conversation the previous day. He again expressed his disappointment over being overlooked for the position of State Sales Manager. He said, "I will now take time and have a hard think about what I want to achieve out of my professional life aver (sic) the next 5 years or so.". He went on to indicate the type of work that motivated and kept him happy and pointed out that he was "still running number 1 year to date on generic sales". Dr Stokes replied indicating that he thought Mr Mulvihill was a "tremendous asset for the company" and asked him to propose a career development plan. On 27 November 2006 Mr Healan, on instructions from sanofi, made a formal offer to Mr Mulvihill of employment with sanofi. Mr Mulvihill verbally accepted the position and, according to an email from Mr Healan to sanofi, sought that the contract be post-dated to give him time to advise Sandoz in the next week or so of his resignation and his decision to "put himself on the market in the new year". After clarification of some of the terms of the offer Mr Healan advised sanofi that Mr Mulvihill was happy and he would be proceeding to advise Sandoz he would be ending employment with them at the end of 2006. Internal correspondence produced by sanofi revealed that Mr Mulvihill advised he would be commencing employment on 8 January 2007. -- 2 of 9 -- 3 December 2006 On 4 December 2006 Mr Mulvihill telephoned Dr Stokes. From Mr Mulvihill's evidence it seems that the purpose of the conversation was to seek some reassurance from Dr Stokes about his future. Mr Mulvihill said he told Dr Stokes that he believed he had no other choice other than to leave but this advice did not constitute a resignation. He asked Dr Stokes about his entitlements were he to leave given his length of service. He offered to assist in any handover to his replacement. In his evidence Dr Stokes was adamant that in the conversation Mr Mulvihill resigned his employment. Dr Stokes confirmed that Mr Mulvihill sought advice about his long service leave and discussion ensued about the arrangements that would be put in place for his departure, i.e., notice and handover. At the conclusion of the conversation Dr Stokes said he would advise Ms Steele of Mr Mulvihill's resignation and ask her to clarify his long service leave entitlements. Later that day Dr Stokes emailed Ms Steele and said: "Paul called me today to let me know of his intention to resign at year end. He would like to hold off making the decision common knowledge for a week or so, but has agreed that we need to start recruiting asap. He has offered to help with interviewing a replacement and also to help hand-over his territory (which is a key one for us). He also wanted clarity on his entitlements (LSL, etc). Could we touch base upon your return to the office?". On 6 December 2006 Dr Stokes emailed Mr Mulvihill with a copy to Ms Steele apologising for the delay in responding to his query concerning his entitlements but advising that Ms Steele was in India. Dr Stokes asked Ms Steele to advise Mr Mulvihill of his entitlements "assuming a finishing date of end December 2006" and his long service leave entitlements. Shortly after this email was sent Ms Steele responded to Mr Mulvihill, initially thanking him for his contributions to Sandoz. She provided general advice as to his termination payment but advised that he did not qualify for long service leave. Ms Steele again gave Mr Mulvihill the web link to Wageline. On receipt of this email Mr Mulvihill replied to Ms Steele emphatically denying that he had resigned or used the word "resign" in his conversation with Dr Stokes on 4 December 2006. He said he wanted his entitlements clarified before making a final decision and would communicate any resignation in writing. Mr Mulvihill expressed his concern over the filling of the State Sales Manager position and being omitted from the leadership group. He also made a complaint about Ms Robinson. Ms Steele responded apologising for the misunderstanding about his resignation but pointing out that the advice about his notice was consistent with his ceasing at the end of December. Ms Steele also replied to Mr Mulvihill's other concerns. In a response email the same day to Ms Steele, Mr Mulvihill reiterated his concerns about recent decisions made by Sandoz and commented that as a result he felt his future with Sandoz was "very limited". He advised this is what he had said to Dr Stokes on 4 December 2006 and added that although it might be best for him to move on he wanted to clarify his entitlements before making any final decision. He then said: "This period coming on top of the out of stock situation has been very stressful for me and has affected my health which led to me taking a few days off recently.". On 20 December 2006 Mr Mulvihill attended Dr Hazell who diagnosed him as suffering from an "acute adjustment disorder". Dr Hazell gave Mr Mulvihill a medical certificate stating that Mr Mulvihill would be unfit for duty from 22 December 2006 to 5 January 2007. Notification of this advice was emailed by Mr Mulvihill to Ms Robinson on 21 December 2006. On that day Mr Mulvihill also advised sanofi that he would be commencing employment on 10 January 2007. The following day Mr Mulvihill emailed a sanofi employee to advise that he would be in Sydney from 15 to 19 January 2007. The national sales conference was due to be held by sanofi at this time. Mr Mulvihill also agreed to travel to Sydney before the national sales conference commenced to undertake systems training with sanofi. Mr Mulvihill signed the employment contract with sanofi on 29 December 2006 with a commencement date of 10 January 2007. January 2007 Mr Mulvihill provided a written resignation to Sandoz, through Ms Robinson, on 5 January 2007. In his email Mr Mulvihill gave one month's notice of his termination of employment with Sandoz to cease on 5 February 2007. Mr Mulvihill said: -- 3 of 9 -- 4 "I have made this decision for health reasons. I have endured a lot of stress during the companies (sic) recent poor stock situation, and the amount of anger and complaint levelled at me by customers in the past few months has caused my health problems along with being overlooked for some positions within the company recently. These things have had an affect (sic) on my health and I was recently diagnosed with a stress related illness. This has also had an affect (sic) on my personal life and affected my family. ... I have decided to accept a less stressful role with another pharmaceutical company.". On 10 January 2007 Mr Mulvihill again attended Dr Hazell and received a medical certificate stating that he was suffering from an "adjustment disorder" and was unfit for duty from 10 January to 17 January 2007. Mr Mulvihill commenced employment with sanofi on 10 January 2007. He travelled to Sydney and undertook systems training on 11 January 2007. He said he made a judgement call to travel, despite being ill, as he did not want to jeopardise his new position. When Mr Mulvihill was in Sydney he emailed Dr Stokes asking that Sandoz agree to end his employment early on 12 January. However, after checking contractual and other arrangements Dr Stokes advised Mr Mulvihill on 12 January that Sandoz required him to work out his notice period. At that time Dr Stokes had not been advised of Mr Mulvihill's intention to commence work with a competitor. On learning of this Dr Stokes telephoned the CEO of sanofi to advise Mr Mulvihill was still employed by Sandoz. The CEO said he would ask Mr Mulvihill to not commence employment with sanofi until his notice period expired. Mr Mulvihill then withdrew from the training. Mr Mulvihill returned to Brisbane on 12 January and did a brief handover of his territory to his replacement. As a consequence of Mr Mulvihill working for a competitor while still employed with Sandoz, Dr Stokes caused Sandoz' solicitors to write to Mr Mulvihill and to sanofi advising that Mr Mulvihill's employment with Sandoz had not yet come to an end. Mr Mulvihill replied on 15 January 2007 advising that his employment with sanofi had not commenced and he had no intention of commencing until his employment with Sandoz ceased. Mr Mulvihill enclosed correspondence from sanofi advising his employment would commence on 6 February 2007. He said he resigned for health reasons, namely acute adjustment disorder, and he was taking prescription medication for his condition. He sought that the notice period be brought forward to terminate on 26 January 2007. Sandoz did not agree to this request and Mr Mulvihill continued in employment with Sandoz until 2 February 2007. On 17 January 2007 Mr Mulvihill signed a new employment contract with sanofi with an amended start date of 6 February 2007. On 18 January 2007 Mr Mulvihill attended Dr Hazell and received another medical certificate from 18 to 25 January 2007 for "adjustment disorder with features of anxiety". A further medical certificate for the same condition was issued by Dr Hazell on 29 January covering the period until 2 February 2007. In the week of 15 January 2007 Sandoz diverted Mr Mulvihill's mobile phone such that he could not use it for outgoing calls and suspended his computer access. Sandoz also advised Mr Mulvihill it would not be necessary for him to attend the Sandoz sales conference scheduled for the week beginning 22 January 2007 in Sydney. February 2007 Mr Mulvihill re-commenced employment with sanofi in mid-February 2007, after travelling to the United States for a holiday which had been planned in 2006. He said the position with sanofi alleviated his stress because it did not require customer interface. Does Mr Mulvihill have an entitlement to payment for proportionate long service leave? Section 43 of the Act provides that an employee is entitled to a proportionate payment for long service leave only if certain contingencies are met. The contingency being relied on here is s. 43(b)(i), Mr Mulvihill's illness, viz., stress, or as it has been medically diagnosed, an adjustment disorder. In contrast Sandoz contends that Mr Mulvihill terminated his employment to take up employment with another employer, viz., sanofi. Sandoz submitted, and I accept, that whether or not Mr Mulvihill was suffering from an illness at the time of his resignation is not determinative of whether an entitlement to proportionate long service leave arises under s. 43(4) of the Act. The applicant must satisfy the Commission on the balance of probabilities that Mr Mulvihill terminated his service with Sandoz "because of" his illness. That is, his illness caused him to terminate his employment. -- 4 of 9 -- 5 In The Australian Workers' Union of Employees, Queensland v Sunshine Coast Private Hospital (2003) 172 QGIG 1097, Asbury C reviewed various decisions of the New South Wales jurisdiction in which consideration had been given to the equivalent of s. 43(3) and (4) of the Act. From that the Commissioner listed six questions which she believed were relevant to determining whether an employee has an entitlement to proportionate payment for long service leave under s. 43(4) of the Act. Mr Cox has submitted that all six questions are relevant for consideration in this matter. The questions posed by Asbury C provide a useful guide to determining such applications but are neither binding nor necessarily applicable in all cases. I accept the submission by Sandoz that the critical questions the Commission must determine in this case are whether the reason for the termination, i.e. stress, was genuine and whether it was the real and motivating factor that caused Mr Mulvihill to terminate his employment. Mr Mulvihill referred to his illness in certain communications with Sandoz and has medical certification of his illness. However, as the above chronology shows, a number of factors were in play in this matter. The medical evidence Dr Hazell had been Mr Mulvihill's General Practitioner for about 10 years at the time of the diagnosis. In addition to Mr Mulvihill being his patient he was also the local drug representative who would call into the practice regularly. Mr Mulvihill also played football for the club for which Dr Hazell was the team doctor. Given these relationships Dr Hazell was in a better position than many GP's to assess Mr Mulvihill's mental health status. Dr Hazell explained that an adjustment disorder is a group of symptoms such as irritability, moodiness and emotionality. The diagnosis is reached by excluding other possibilities such as past issues with anxiety or depression or recent bereavement. Time frames are attached such that the symptoms occur within a few months of the onset of the stress. To fall within the diagnosis the stress cannot be severe. The disorder usually resolves itself once the stress is removed and this is usually within six months of the stressor terminating. At that point the person would return to the mental state they had before the stressor occurred. An acute adjustment disorder is one that lasts less than six months. Dr Hazell confirmed in his evidence that his medical assessment of Mr Mulvihill was based on his observations of Mr Mulvihill and what Mr Mulvihill told him. He said that in the consultation of 20 December 2006 where he diagnosed an acute adjustment disorder Mr Mulvihill reported he had poor concentration, was irritable and had poor sleep. He also had physical symptoms of gastrointestinal upset, aches and pains. In the consultation of 10 January 2007 Mr Mulvihill complained of persistent work related stress and sleep difficulties. He reported irritability with his wife and children. Dr Hazell decided that Mr Mulvihill's condition was "clinically worse" than it had been on 20 December 2006. On 18 January 2007 Mr Mulvihill reported increased mood lability, increased anxiety and had poor sleep. He was "shaky, fidgety and (had) self doubts". Dr Hazell concluded that Mr Mulvihill's condition had worsened over the two month period and he was suffering from an adjustment disorder with features of anxiety. On 29 January 2007 the consultation was by telephone. Mr Mulvihill reported that his symptoms had not changed. In his evidence Dr Hazell said: "32. In my professional opinion the symptoms that Paul presented in December 2006 and January, 2007 were out of character for him. 33. I consider those symptoms indicated significant mental health issues and I am of the opinion that his work was a major contributing factor in his condition.". In addition to Dr Hazell, Mrs Mulvihill gave evidence of her husband's health about which she was not cross-examined. In her evidence Mrs Mulvihill said that during the period between August 2006 and January 2007 Mr Mulvihill "exhibited traits of impatience, severe bad temper which is not normal for Paul" and was "not sleeping regularly." In October 2006 Mr Mulvihill removed himself voluntarily from the family home because "he was so difficult to get on with". Although Dr Hazell learned on 9 January 2007 that Mr Mulvihill was resigning and on 10 January 2007 that Mr Mulvihill had obtained alternative employment he had not been apprised of the following:  prior to Mr Mulvihill consulting him on 2 November 2006 he had been to a job interview and was travelling to Sydney for another interview the next day;  Mr Mulvihill had verbally accepted employment on 27 November 2006;  Mr Mulvihill had commenced his new employment on 10 January 2007 and was travelling to Sydney on or about that day for training with his new employer; and -- 5 of 9 -- 6  Mr Mulvihill was working out a period of notice with the previous employer while working for the new employer. Dr Hazell agreed in cross-examination that the combination of working two jobs and not telling one employer of this could cause the symptoms associated with adjustment disorder. According to the diagnostic criteria for adjustment disorders a person develops emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s). This description includes both temporal and causal components. When did the stress commence? The diagnosis of an adjustment disorder was first made on 20 December 2006. This suggests the stressor(s) would have occurred in or about September 2006. The evidence Mr Mulvihill gave of the onset of his stress could only be described as inconsistent. In his complaint to DEIR of 19 February 2007 Mr Mulvihill said he was beginning to feel "quite stressed and anxious" as a result of being overlooked for the Sate Sales Manager position and being omitted from the leadership group, events which occurred in October 2006. This view was repeated in a letter dated 26 June 2007 to Michelle Lake, another Inspector from DEIR, where Mr Mulvihill said he "began to have health problems in October 2006.". In his initial affidavit in these proceedings Mr Mulvihill said that his stress began in August 2006 as a result of a very bad problem with stock shortages causing customer complaints. When asked to resolve these conflicts between the time periods Mr Mulvihill said that "different levels of stress started well before August. It escalated around the October date, there's no doubt about that. It escalated a lot". Later he said, "A certain level of stress was definitely present before (August 2006), but if you want to use August 2006 as when I became very stressed then I'm happy to accept that because it was around that time.". The only evidence regarding stress in September related to a social function where Mr Mulvihill was accosted by clients of Sandoz who were guests at the party complaining of stock shortages. Information about the incidents is contained in Mr Mulvihill's response affidavit and in Mrs Mulvihill's affidavit. Mr Mulvihill's response affidavit referred to sleeping difficulties being experienced in October 2006 as a result of being overlooked for the position of Sales Manager. The evidence of Ms Steele was that the appointment of Ms Robinson to the position of State Sales Manager was announced on 6 November 2006. By this time Mr Mulvihill had attended two job interviews with sanofi. Mr Mulvihill had elected not to apply for the positions of Field Sales Manager or the Key Account Manager, Queensland. The person who was appointed to the Field Sales Manager was subsequently appointed to the State Sales Manager position. Although Sandoz had not explicitly advised staff that the appointment to the Field Sales Manager position would assist in the succession planning for the State Sales Manager position, Mr Mulvihill could see no value in making an application as he considered it to be a "mickey mouse" position. I appreciate that these events took place more than 18 months ago and precision about actual dates the stress commenced might be difficult. However, given that Mr Mulvihill is claiming stress caused him to terminate his employment with Sandoz it would be reasonable to expect that his evidence about when his stress commenced would be relatively certain and consistent. What was the cause(s) of the stress? The diagnostic criteria require an identifiable stressor(s). Dr Hazell has identified the stressor as Mr Mulvihill's work. The evidence from Mr Mulvihill about the cause of his stress was unclear. In his initial affidavit the only reason given was stock shortages and the resultant customer complaints. Dr Stokes' evidence about stock shortages has previously been recorded. In any event, in cross-examination Mr Mulvihill said that shortage of stock was only one of the causes of his stress. In his response affidavit Mr Mulvihill stated that his position at Sandoz was inherently stressful because of its geographical and numerical size. In cross-examination Mr Mulvihill denied that these size factors caused him stress and acknowledged that he had expressed interest in servicing a bigger territory in New South Wales and the Key Account position in August 2006, the time when he said his stress commenced. He also complained that he received no secretarial support, however, in cross-examination it was revealed that even while working for Hexal, secretarial support had not been provided. -- 6 of 9 -- 7 Later in his evidence Mr Mulvihill suggested his stress also stemmed from not being appointed to the leadership group and indicated his stress could have been alleviated had Sandoz provided him with a training or middle management role. Although Dr Stokes offered Mr Mulvihill the opportunity after their discussion on 9 November 2006 to indicate the specific areas he would like to develop so that a career development plan could be devised Mr Mulvihill did not take the proposal seriously. He considered that as a high performing employee the initiative for his career development should have come from Sandoz. Despite Dr Stokes stating that Mr Mulvihill was a "tremendous asset for the company" the message received by Mr Mulvihill from the communications was that he did not have a certain future with Sandoz, at least in the direction that he wanted to go. By the time these communications occurred Mr Mulvihill had already set himself on a path to alternative employment and the communications with Dr Stokes would have only served to confirm his belief that the path he had chosen was the one to take. Mr Mulvihill does not attribute any of his stress to the situation he put himself in from November 2006 to the time of his resignation. He said that Hexal employees were being treated less favourably than those who were with Sandoz at the time of the merger and as a result he was overlooked for leadership positions within Sandoz. This caused him to consider his future. Mr Mulvihill felt it was an economic necessity to find another position before ceasing with Sandoz. He also did not want to resign his employment before receiving a written contract from sanofi as he did not think he would be held to his acceptance if the contract did not match his expectations. These contentions belie the actual situation. The evidence does not support a view that Hexal employees were being disadvantaged relative to Sandoz employees. Both Ms Robinson and the person who was appointed to the leadership group and who was the top salesperson in Queensland were former Hexal employees, albeit with fewer years of service than Mr Mulvihill. In any event the announcements about these appointments were made after Mr Mulvihill was interviewed by sanofi. During the period from November 2006 until his resignation Mr Mulvihill:  took a day's sick leave to travel to Sydney for a job interview;  accepted alternative employment with sanofi and confirmed that acceptance by signing a written contract;  agreed to a date of commencement with sanofi which fell in his notice period in the belief that Sandoz would agree to release him early;  had a conversation with Dr Stokes about the arrangements to be put in place were he to leave Sandoz; and  at the same time was making overtures to Sandoz to try to secure for himself a better position by asserting he was not resigning. In my view Mr Mulvihill's own conduct cannot be discounted as a cause of his stress. His condition may have worsened after tendering his resignation and this may have been in part due to the legal letter written on behalf of Sandoz being delivered to him. However, this was prompted by Mr Mulvihill's own actions in commencing work with sanofi while still being employed by Sandoz. Any exacerbation of Mr Mulvihill's condition was of his own making. Was the reason for the termination genuine? Dr Hazell's contemporaneous medical notes record the physical symptoms as reported and observed. These point to some stress being experienced by Mr Mulvihill. However, that Mr Mulvihill was less than candid with Dr Hazell about his behaviour casts some doubt over the basis of his diagnosis. In addition, it is clear from the analysis of Mr Mulvihill's evidence that the causes and time of onset of his stress varied over the course of his evidence. Generically, the cause was work and Mr Mulvihill's own actions contributed to it. He played games with Sandoz in accepting alternative employment with sanofi; obfuscating about his resignation and agreeing to commence employment with sanofi before concluding his period of notice with Sandoz. By the time of his resignation Mr Mulvihill had already signed a written contract with sanofi with a commencement date in the following week before negotiating an early release from Sandoz. Certainly, he had been diagnosed with an acute adjustment disorder but the signing of the contract only provided written confirmation of the agreement he had verbally made one month earlier. The reason for his termination was that he accepted employment with sanofi. He then sought to rationalize his termination by relying on his illness so as to claim payment for proportionate long service leave which had been denied to him. Accordingly, I am not satisfied that the reason of illness given by Mr Mulvihill for terminating his service was genuine. -- 7 of 9 -- 8 Was the stress the real or motivating reason for the termination? Mr Cox submitted that if Mr Mulvihill wanted to "play up" his medical condition he could have made a much better job of it. He said Mr Mulvihill knew in January 2006 of the basis upon which he could claim proportionate ling service leave. Had Mr Mulvihill wanted to take the sanofi position and secure his long service leave he would have planted seeds with Dr Hazell in November for something more enduring than the flu. In addition, after the events of 4 and 6 December 2006 and before 20 December 2006, Mr Mulvihill did not attempt to seek further medial treatment, which would have been expected if he was trying to fabricate his condition. That Mr Mulvihill planned a holiday to the United States for February 2007 was also indicative of his intention to continue employment with Sandoz. Although I have considered these submissions and Mr Mulvihill's evidence I am not persuaded by them. The telephone conversation with Dr Stokes on 4 December 2006 highlights the implausibility of Mr Mulvihill's evidence that stress caused him to terminate his employment with Sandoz. In his initial affidavit evidence no reference was made to this conversation. It was Mr Mulvihill who initiated the telephone call. By this time Mr Mulvihill had verbally accepted employment with sanofi and had agreed to commence employment with them on 8 January 2007. Mr Mulvihill had advised sanofi, through Tanner Menzies, of his intention to notify Sandoz of his resignation the week after 27 November 2006, i.e. approximately 4 December. The commencement date with sanofi was 8 January 2007, one month after the date of the telephone call with Dr Stokes. Mr Mulvihill was contractually obliged to give one month's notice. Mr Mulvihill by his own evidence also offered to assist in any handover to his replacement. In addition Dr Stokes sent a contemporaneous email to Ms Steele advising of Mr Mulvihill's intention to resign at the end of 2006. I do not believe that Dr Stokes misunderstood what Mr Mulvihill told him. Dr Stokes was an impressive witness and presented his evidence clearly and unequivocally. These factors support a conclusion that the purpose of the telephone call to Dr Stokes on 4 December 2006 was to advise of his intention to resign at the end of 2006. The resignation was not a mere possibility but was in fact something to be done. During the telephone call Mr Mulvihill sought to open negotiations on his arrangements for ceasing employment with Sandoz by discussing his notice period and handover. He raised the payment of long service leave given his length of service. It was only when Ms Steele advised that he had no entitlement to long service leave that Mr Mulvihill, in his second email to Ms Steele on 6 December 2006, mentioned his ill health. By that point the only diagnosed ill health had been the flu suffered in early November 2006. I am not persuaded that the adjustment disorder was the real or motivating factor that caused Mr Mulvihill to terminate his employment. In so finding, I am making an assessment having regard to the whole of the evidence. Of particular importance in reaching my decision has been the contemporaneous documentation which provides the most accurate light on the events as they were unfolding at the time. In my view the real or motivating factor that caused Mr Mulvihill to terminate his employment with Sandoz was that he believed he was being treated unfairly by not being promoted or sufficiently accommodated within the company structure for his contributions when he was a consistently high performing salesperson. This belief caused him to accept employment with sanofi. I accept it is painful to be passed over by less experienced employees or employees with fewer years of service. In some cases this can be a cause of stress and anxiety particularly if there is some uncertainty as to the person's role within the organization. In this context Dr Stokes' comments about considering his future made during the conversation of 9 November 2006 would not have reassured Mr Mulvihill. I also accept that the decision to resign was not one made lightly given Mr Mulvihill's length of service to Sandoz and its predecessors. However, it is difficult for Mr Mulvihill to blame Sandoz for all of his problems when he contributed to his plight by not applying for available positions. Additionally, Mr Mulvihill was actively engaged in seeking alternative employment by the time of his conversation with Dr Stokes in November 2006 and the announcement of Ms Robinson's appointment as State Sales Manager. He had already had two job interviews for the position with sanofi including one where he travelled to Sydney. Mr Mulvihill had also accepted employment with sanofi and set in train the mechanics of his commencement and training prior to his resignation from Sandoz. He also participated in training with his new employer prior to his ceasing with Sandoz. It is not surprising if these "work" factors caused him stress but they are not the cause of his resignation. -- 8 of 9 -- 9 Having regard to all of the evidence I am satisfied that it was Mr Mulvihill's discontent with the direction of Sandoz and his place within it and not his illness that was the real or motivating factor in Mr Mulvihill's decision to resign. That discontent caused Mr Mulvihill to accept employment with sanofi. Accordingly, I determine that Mr Mulvihill did not terminate his service with Sandoz because of his illness and therefore he does not have an entitlement to a proportionate payment for long service leave under s. 43(4)(b)(i) of the Act. The application is refused. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2008 8, 9 and 23 April Appearances: Mr D. Cox of the Department of Employment and Industrial Relations on behalf of the Applicant. Mr M. Heffernan of The Employment Advisor Pty Ltd on behalf of the Respondent. Released: 21 May 2008 Government Printer, Queensland The State of Queensland 2008. -- 9 of 9 --