Cherry v Nearley Pty Ltd [2006] QIRC 129 (2006) 183 QGIG 796

[Extract from Queensland Government Industrial Gazette, dated 27 October, 2006, Vol. 183, No. 13, pages 796-798] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc. s. 43 - long service leave entitlement Natalie Cherry AND Nearley Pty Ltd (B/2006/124) VICE PRESIDENT LINNANE 12 October 2006 Application for proportionate payment of long service leave - Applicant ceased employment after 7 but before 10 years of service - Applicant required to establish reason for leaving was within statutory requirements found in s. 43(4) of the Industrial Relations Act 1999 - Applicant established termination was due to her illness or incapacity - Application granted - Industrial Relations Act 1999 s. 278. DECISION [1] This is an application by Natalie Cherry seeking an order under s. 43(4)(b)(i) of the Industrial Relations Act 1999 for a proportionate payment of long service leave. Ms Cherry commenced employment with Nearley Pty Ltd trading as Harvey World Travel Noosa Heads (Harvey World Travel) on 13 April 1996 and ceased that employment on 15 December 2005. Ms Cherry was employed as a Senior Consultant. [2] Section 43(4)(b)(i) of the Act provides as follows: "43 Entitlement (1) This section applies to all employees, other than seasonal employees. ... (4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if- ... (b) the employee terminates the service because of- (i) the employee's illness or incapacity...". [3] Ms Cherry was employed for less than 10 years and had completed at least 7 years continuous service with Harvey World Travel. She had completed 9.76 years of employment with Harvey World Travel. The issue for determination is whether Ms Cherry terminated her employment because of illness or incapacity. [4] It seems that in general Ms Cherry's employment at Harvey World Travel prior to the appointment of a Manager in or about July 2005 was uneventful. In fact Ms Cherry had received recognition as the number one consultant for the Harvey World Travel Group in Australia in 2005. [5] The reasons for the appointment of a Manager, Morrie Evans, are irrelevant. Ms Elizabeth Croft, as a Director of Nearley Pty Ltd and the registered proprietor of Harvey World Travel, was entitled to appoint a Manager to run her business. What is clear, however, is that conflict arose between Ms Cherry and Mr Evans. The cause of that conflict is also irrelevant. [6] By August 2005 Ms Cherry was suffering stress. She consulted a medical practitioner on 19 August 2005. After that consultation Ms Cherry attempted to manage the stress she was experiencing by trying to avoid personal contact with Mr Evans. On 2 November 2005 Ms Cherry was asked to work with Mr Evans on 4 November 2005. Ms Cherry advised Ms Croft that she felt uncomfortable and upset with having to work closely with Mr Evans. [7] Ms Cherry had also arranged for the office staff to participate in a Breast Cancer Fun Run on the morning of 4 November 2005. Ms Cherry telephoned Ms Croft on 4 November 2005 to request that she be able to swap with another staff member so that she could participate in the fun run and to attend to a number of clients scheduled to be coming into the office on that day. Ms Croft refused her request and required her to meet with Mr Evans. Ms Cherry attended the meeting with Mr Evans but became distressed during the meeting. She again attended her medical practitioner. -- 1 of 3 -- 2 [8] Dr Gay Fitzgerald, Ms Cherry's medical practitioner, gave evidence to the effect that on 7 November 2005 Ms Cherry presented with "anxiety related to workplace stresses, palpitations, light headaches and tearfulness". Dr Fitzgerald recommended 2 weeks sick leave. The medical certificate issued to Ms Cherry records that she was suffering from anxiety and was unfit for work during the period 7 November 2005 to 21 November 2005. [9] Ms Cherry then presented the sick leave certificate to Mr Evans. According to Ms Cherry, Mr Evans then asked her for a written summary of each of her files before she left the office on sick leave. Ms Cherry felt that this was unreasonable. Mr Evans' evidence is that he asked Ms Cherry to give him an oral update on each of her files. [10] During that period of sick leave Ms Cherry had Bowen therapy, acupuncture and remedial massage to help deal with the stress. Ms Cherry again visited her medical practitioner on 18 November 2005. Dr Fitzgerald's evidence is that on this day Ms Cherry presented with persisting anxiety symptoms despite being on sick leave and that Ms Cherry was concerned about stress recurring upon her return to work. Ms Cherry resigned her employment on this day giving Harvey World Travel 4 weeks notice. [11] Dr Fitzgerald had been absent from her practice on leave for the period three weeks prior to 20 December 2005. On 21 December 2005 she issued a further certificate concerning Ms Cherry's medical condition as follows: "This is to certify that I have been treating Natalie Cherry for generalised anxiety related to work place stresses since 19 August 2005. On 7 November 2005 I advised her to take leave from work because of an increase in her anxiety symptoms. On 18 November she presented with ongoing symptoms despite 2 weeks leave from work and I supported her decision to terminate her employment for medical reasons. Following this, I believe Ms Cherry attempted to return to work for her notice period but developed bronchitis for which she saw another practitioner in my absence and was advised [sic] rest away from work. On my review on 20 December 2005 she had ongoing symptoms of bronchitis requiring further treatment and she remains medically unfit for work until her symptoms improve.". [12] Dr Fitzgerald confirmed in oral evidence what she had already stated in her medical certificate. [13] Harvey World Travel contends that Ms Cherry resigned her employment to commence a competing business. Ms Cherry accepts that she made application for Registration of a Business Name on 9 December 2005, i.e. whilst she was on sick leave. The business name was "Noosa Cruise and Travel" and the nature of the business was "Travel Agency - Selling International and Domestic Travel". On that form Ms Cherry is noted as the individual "who will be carrying on business under the name applied for". [14] On or about 6 December 2005, whilst still employed at Harvey World Travel, a Statement of Change in Certain Particulars was received by the Department of Tourism, Fair Trading and Wine Industry Development. That form indicates that the lodging party was Ms Cherry and her partner Damien Pradella. The business was "Noosa Cruise and Travel" and on this form the individuals commencing to carry on business were noted as Ms Cherry and Mr Pradella. Mr Pradella is also a Director of Waterproofing and Tile Layers Pty Ltd and conducts a business known as DJP Tiling Contractors. Ms Cherry lodged an application for a travel agency licence on 29 November 2005 which was obtained on 13 January 2006. The business of Noosa Cruise and Travel did not commence until after the licence was obtained. [15] Under cross-examination about the business, Ms Cherry said that she and Mr Pradella knew by 7 November 2005 when she went on sick leave that it was only a matter of time before she would have to resign her employment due to the stresses the employment was placing on her. At that time she knew that she would have to make alternative arrangements for future employment. That is why she made the application for Registration of a Business Name on 9 December 2005. [16] In the circumstances I find it difficult to dispute the evidence of Dr Fitzgerald. Dr. Fitzgerald's evidence is that she supported Ms Cherry's decision to terminate her employment with Harvey World Travel on medical grounds. I can well understand the position of Ms Cherry in circumstances where she knows that she can no longer continue employment with Harvey World Travel that she sets about trying to either obtain alternative employment or the establishment of a business. That business did not commence to operate until well after Ms Cherry left the employ of Harvey World Travel. [17] I accept the position that Ms Cherry was suffering stress and anxiety whilst working at Harvey World Travel. No blame needs to be attached to either Ms Cherry or Mr Evans for that stress and anxiety for the application to fall within s. 43(4)(b)(i) of the Act. All that is needed is that the employee terminates their employment because of illness or incapacity. -- 2 of 3 -- 3 [18] On the evidence before me the only conclusion that can be reached is that Ms Cherry did terminate her employment because of illness or incapacity. She had already completed 9.76 years of employment with Harvey World Travel. The claim is for an amount of $7,254.13. No issue was taken by Ms Croft as to the amount claimed. [19] In those circumstances I order that Nearley Pty Ltd pay to Natalie Cherry an amount of $7,254.13, less the appropriate amount of taxation, within twenty-two (22) days of the release of this decision. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2006 25 September 2, 3 October Appearances: Ms N. Cherry in person. Mrs E. Croft of Nearley Pty Ltd. Released: 12 October 2006 Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --