Buchholz v Uniting Care Health trading as The Wesley Hospital [2021] QIRC 6

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Buchholz, Justus Paul v Uniting Care Health trading as The Wesley Hospital [2021] QIRC 006 PARTIES: Buchholz, Justus Paul (Applicant) v United Care Health t/a The Wesley Hospital (Respondent) CASE NO: B/2020/62 PROCEEDING: Recovery of pro-rata long service leave DELIVERED ON: 6 January 2021 MEMBER: HEARD AT: POWER IC On the papers ORDERS: Uniting Care Health to pay Justus Paul Buchholz the gross sum of $16,776.05, being his entitlement to proportionate long service leave, within 28 days of this order. CATCHWORDS: INDUSTRIAL LAW – RECOVERY OF PRO RATA LONG SERVICE LEAVE – Employee resigned from employment – whether the employee is entitled to proportionate long service leave – whether employee terminated employment because of illness LEGISLATION: CASES: Industrial Relations Act 2016 (Qld), s 95 -- 1 of 11 -- 2 AWU v Sunshine Coast Private Hospital [2003] QIR Comm 241; (2003) 172 QGIG 1097 Gibbons v eBet [2015] QIRC 7 Johnson & Johnson Pty Ltd v Amalgamated Metals Workers Union (1987) 21 IR 457 Reasons for Decision [1] Mr Justus Buchholz ('the Applicant') filed an application seeking proportionate payment of long service leave pursuant to s 95 of the Industrial Relations Act 2016 (Qld) ('the Act'). The Applicant submits that his resignation from employment with Uniting Care Health trading as The Wesley Hospital ('the Respondent') occurred because of his ill health. [2] The Applicant submits that he is entitled to payment of pro-rata long service leave in accordance with s 95(4)(b)(i) of the Act. This section provides for an entitlement of proportionate payment to an employee with more than seven but less than ten years' continuous service where the employee terminates their employment due to illness or incapacity. [3] The Respondent confirmed the value of the Applicant's long service leave entitlement as at the time of resignation was the gross amount of $16,776.05. [4] The Respondent opposes this application, submitting that the Applicant resigned for reasons other than illness or incapacity and so does not have an entitlement to a proportionate payment of long service leave. Background [5] The Applicant was in continuous employment with the Respondent from 3 January 2011 until his resignation took effect on 31 July 2020. [6] The Applicant worked for the Respondent for nine years and seven months in total. The proportionate long service leave entitlement, based on the information provided by the Respondent and calculated in accordance with s 95 of the Act, is 12 weeks, 2 days and 7.5 hours. The Respondent has calculated the proportionate long service leave entitlement as the gross amount of $16,776.05. [7] The issue to be determined in this matter is whether the employee is entitled to be paid the amount of $16,776.05 by the Respondent in accordance with s 95(4)(b)(i) of the Act. -- 2 of 11 -- 3 Legislative Provisions [8] The Act sets out the entitlement 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 where other specific conditions are met. [9] 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; … Applicant's submissions [10] In compliance with a Directions Order issued by the Commission, the Applicant filed submissions in support of his claim in the form of a chronology with accompanying attachments. -- 3 of 11 -- 4 [11] The Applicant attached copies of emails between himself and the Respondent regarding compassionate and carer’s leave details in the months prior to his resignation along with letters from the solicitor for the Applicant’s father and doctor confirming his need for assistance from the Applicant and a copy of the funeral details for the Applicant's father. [12] An email dated 17 April 2020 from the Applicant to Ms Katie Langley, Senior Human Resource Advisor, People and Culture, confirmed that the Applicant advised the Respondent that he was utilising the Employee Assistance Program (EAP) as he was not coping with issues relating to his father’s death and estate issues. [13] On the same day, Ms Langley replied to the Applicant, stating "I am sorry to hear you are experiencing a tough situation. I am glad you have found the EAP service beneficial during this time." [14] The Applicant submitted a Certificate of attendance from the EAP service, Benestar Group, confirming that the Applicant had attended phone appointments with Clinician Janet Devey-Salmon on the 14 April 2020, 23 April 2020 and 6 July 2020. [15] Medical certificates were provided stating that the Applicant had a medical condition and was unfit for work on the 13 March 2020; 09 July 2020 to 17 July 2020, and 07 October 2020. [16] The Applicant submitted a letter dated 30 September 2020 from Registered Psychologist, Mr Luke Dunstan at Woodside Centre, confirming that the Applicant attended his first appointment on 13 July 2020 after being referred by his General Practitioner and has since attended three further sessions with a fourth session pending. Mr Dunstan confirms that he administrated a test to assess the severity of the symptoms with the results suggesting the Applicant's symptoms of depression, anxiety and stress were severe to extremely severe. Respondent's submissions [17] The Respondent filed submissions in compliance with the Directions Order, summarised below: • the Respondent opposes the Applicant's application for the following reasons: (a) it is the Respondent's position that there is insufficient medical evidence before the Commission to prove the Applicant was unable to continue to perform his role due to injury, incapacity or other medical condition; and -- 4 of 11 -- 5 (b) it is probable that the Applicant resigned to avoid termination of his employment by the Respondent due to unsatisfactory performance (rather than due to illness), and as such the Applicant's claim is not bona fide; • on 2 June 2020 the Respondent advised the Applicant that a performance improvement process would commence, with the aim to improve his performance to the standard expected. At this meeting, the Applicant was advised that if his performance did not improve following the process, it could result in termination of his employment; • following some changes to the performance improvement plan, the performance improvement process commenced on 5 June 2020. Meetings were scheduled weekly and the final review was scheduled to occur on 31 July 2020; • in a review meeting on 12 June 2020, the Applicant was advised that his employment was not improving to the standard of performance expected of him; • on 24 June 2020, the Respondent and the Applicant discussed the clinical coding urology assessment results. The Respondent advised he achieved a 65% accuracy result, which did not meet the minimum 80% pass mark. The Respondent advised the Applicant that his performance was not improving and he was not meeting the performance measures detailed in his performance improvement plan; • after considering the Applicant's overall improvement against the performance measures detailed in the performance improvement plan and the Applicant's response on 24 June 2020, the Applicant was issued with a written warning on 29 June 2020; • on 9 July 2020, the Applicant provided a medical certificate to the Respondent, issued by Dr Vinod Kumar from Woolloongabba Medical Centre which stated "Mr Justus Buchholz has a medical condition and will be unfit for work from 9/7/20 to 17/7/20 inclusive;" • on 17 July 2020, the Applicant provided notice of resignation to the Respondent and advised his employment would end on 31 July 2020. The Applicant also provided the Respondent a medical certificate dated 16 July 2020, issued by Dr Kumar, which stated "Mr Justus Buchholz has a medical condition and will be unfit for work from 17/7/20 to 31/7/20 inclusive;" -- 5 of 11 -- 6 • on 28 July 2020, the Applicant provided a medical certificate to the Respondent a medical certificate which stated "Mr Justus Buchholz is suffering from a medical condition and hence seems unable to continue his work duties;" • in light of the circumstances at the time of resignation and the phrase in the medical certificate 'seems unable', the Respondent asked the Applicant to provide more information. However, no further information was provided, as requested; • to ensure the Applicant had a bona fide entitlement, the Respondent requested medical evidence to support his contention that he terminated his employment due to ill-health; • the Applicant did not provide medical evidence as requested and subsequently filed Form 14 – Application for proportionate payment of long service leave with the Industrial Registry on 21 August 2020; • following a Directions Ordered issued by the Commission, the Applicant has provided the Respondent with a letter from Mr Dustan; • pursuant to s 95(4)(b)(i) of the Act, an employee who has competed at least seven years, but less than ten years, continuous service is entitled to a proportionate payment of long service leave if the employee terminates their service because of illness; • pursuant to s 95(7) of the Act, illness includes injury, incapacity or other medical condition; • pursuant to clause 8.5.4(ii) of the UnitingCare Health Clerical/Administration Enterprise Agreement 2016/2018 ('the Enterprise Agreement') a cash equivalent to long service leave will be paid for a lesser period of ten calendar years continuous service upon ill health retirement for an employee who has completed at least five years continuous service; • the Respondent notes the Act and the Enterprise Agreement should be read in conjunction with one another and the Act prevails to the extent of any inconsistency; • the Respondent submits a reasonable application of the entitlement to proportionate payment of long service leave, is to pay an employee this entitlement if: (a) the employee notifies the Respondent they have terminated their service because of illness/ill health retirement; and -- 6 of 11 -- 7 (b) the employee is unable to perform the inherent requirements of their role due to illness, for the foreseeable future; and (c) the employee provides sufficient evidence to satisfy a reasonable person that the abovementioned points are bone-fide; • the Respondent notes Mr Dunstan states the results of a Depression, Anxiety and Stress Scale administered on 13 July 2020 suggested the Applicant was experiencing severe depressive symptoms, and extremely severe symptoms of anxiety and stress; • however, there is no medical evidence before the Commission that the Applicant has been medically diagnosed with depression or anxiety medical condition. The test completed on 13 July 2020, only suggested the Applicant was experiencing symptoms of these medical conditions; • the Respondent submits there is insufficient medical evidence before the Commission to support the Applicant’s claim that he terminated his employment because of illness; • the Respondent submits the Act and the Enterprise Agreement do not confer an entitlement to proportionate payment for long service leave when an employee terminates their services to avoid the employer terminating their services; • the Respondent was undertaking a performance improvement process with the Applicant at the time of their resignation, and the Applicant’s performance had not improved since the commencement of the performance improvement process on 5 June 2020; • the Applicant was advised verbally on two occasions (12 and 29 June 2020) throughout the process that his performance was not improving to the standard expected; • following the written warning issued on 29 June 2020, the Applicant was clearly on notice that his employment was in jeopardy if his performance did not meet the required standard, and the final review was scheduled to occur on 31 July 2020; • the Respondent notes the Applicant provided medical certificates stating he was unfit for work for periods between 9 July 2020 to 31 July 2020, and this was the period of time between the Applicant being issued the written warning, and when the final review was to occur, which may have resulted in the Applicant's employment being terminated; • the Respondent notes there was no indication or notification by the Applicant that he was suffering from an illness during the performance improvement process and he did not provide this as an explanation as to why his performance was unsatisfactory, or why it was not improving; -- 7 of 11 -- 8 • in consideration of the above-mentioned facts, the Respondent asserts it is probable that the Applicant’s motivation for ending his employment was to avoid termination of his employment due to unsatisfactory performance and was not due to injury, illness-based incapacity for work or other medical conditions; and • the Respondent submits the Applicant does not have a bone fide entitlement to proportionate payment for long service leave. [18] The Respondent attached to their submissions a copy of the written warning letter issued to the Applicant dated 29 June 2020. This letter advised the Applicant that he did not meet the minimum 80% pass mark for the clinical coding urology assessment and obtained an overall pass mark of 65% accuracy and as such was not displaying satisfactory performance as part of his Performance Improvement Plan. Consideration [19] The decision in AWU v Sunshine Coast Private Hospital,1 provides guidance to the considerations relevant to determining whether an employee has an entitlement to proportionate payment for long service where termination is claimed to be due to the employee's illness: 1. Was the reason for the termination one which fell within the section? 2. 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? 3. 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? 4. Did the reason claimed cause the employee to terminate his or her employment? 5. Did the reason claimed affect the employee in relation to the particular service he or she terminated? 6. 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?2 [20] On 17 July 2020, the Applicant provided notice of resignation from his employment with the Respondent, effective as at 31 July 2020. The Applicant also provided the Respondent with a medical certificate dated 16 July 2020 issued by Dr Kumar, which stated "Mr Justus Buchholz has a medical condition and will be unfit for work from 17/07/2020 to 31/07/2020 inclusive." [21] I am satisfied that the medical evidence in the form of medical certificates and letter from psychologist Mr Dunstan along with evidence of multiple access to EAP for assistance commencing on 14 April 2020 confirms that the Applicant was suffering an illness prior to his resignation. I note the Respondent's submission that there is no evidence that the 1 [2003] QIR Comm 241; 172 QGIG 1097. 2 Ibid 1101-1102. -- 8 of 11 -- 9 Applicant has been medically diagnosed with depression or anxiety, and the medical evidence merely suggests that he was suffering symptoms of these conditions. There is no requirement that a medical diagnosis be provided to satisfy the requirements of s 95(4). In Gibbons v eBet Ltd (Gibbons),3 Commissioner Neat determined that 'illness' should not be given a narrow meaning and can, in an appropriate case, include 'stress' and the physical manifestations of that stress. [22] Having accepted that the Applicant was suffering from an illness, the issue to be determined is whether the illness was the genuine reason for the Applicant terminating his employment. [23] The Respondent submits that the Applicant did not resign because of illness, rather the resignation was because of the Applicant's unsatisfactory participation in a performance management process. The Respondent's submission is that the Applicant resigned because his was put on notice of the possibility of termination following this unsatisfactory performance. [24] In Gibbons, it was held that it is open for the Commission to find that a worker’s illness caused the worker to terminate his or her employment even though a factor other than the illness was taken into account in reaching that decision. [25] The decision in Gibbons states that the appropriate enquiry is whether the reason claimed by the employee for the termination is the reason upon which the employee placed the most weight in making the decision to terminate the employment. [26] There is no evidence that the Applicant placed any weight at all on the prospect of potential termination when he terminated his employment. There was undoubtedly difficulties in the workplace between the parties, however to find that the Applicant placed most weight on this factor would require evidence in support of such a proposition. [27] The Respondent submits that they were not informed that the Applicant was suffering an illness prior to his resignation. The legislation does not require that the Applicant inform the employer of the illness, either earlier in the employment history or at the time of resignation. In the decision of Johnson & Johnson Pty Ltd v Amalgamated Metals Workers Union,4 based on a similar provision, the Commission held that despite the worker’s failure to disclose his injury to the employer at the time of the termination, the employee was still entitled to claim payment for his long service leave because he had provided sufficient evidence to demonstrate that the injury was a genuine reason for the termination of his employment. The fact that he had not disclosed this to his employer at the time of termination was not detrimental to his application. Watson J concluded that 3 [2015] QIRC 7. 4 (1987) 21 IR 457. -- 9 of 11 -- 10 if the employee had a genuine reason for termination that fell within the section, it was irrelevant if there were other motivations for termination. [28] Even if it is accepted that the Applicant's difficulties in the workplace contributed to his decision to resign, I am persuaded that the evidence confirms that the motivating reason for his resignation was his illness. [29] The letter from the Applicant's treating psychologist, Mr Dunstan, dated 30 September 2020, confirms that the Applicant had attended an appointment on 13 July 2020 and a further three appointments since this date, presumably post-termination. Whilst this does not confirm that reason for termination, it does suggest that the illness is genuine and was not a pretence or frivolous. Did the illness impact the Applicant's ability to perform his role? [30] It is not necessary to prove that the illness prevented the Applicant from working, only that it impacted on his ability to perform the role and so is the likely reason for termination. The medical evidence indicates that the Applicant's illness impacted his ability to perform his role, with the medical certificates confirming that the Applicant was unfit for work duties or unable to continue his work duties. It is clear that the Applicant's ability to perform his role was impacted, particularly given the nature and severity of the Applicant's illness as described by his treating psychologist. Reasonableness of the decision to terminate employment [31] There is a view that consideration of whether the decision to terminate employment would have been made by a reasonable person is beyond the scope of the legislative provision. This is arguably correct, however in circumstances in which multiple reasons exist for termination, a consideration of reasonableness may assist in determining which is more likely to have been the motivating factor. However, in circumstances in which there is sufficient evidence of an illness and little or no evidence that other factors were involved, consideration of the reasonableness of the decision is unlikely to be useful. [32] Having formed the view that the Applicant suffered an illness which impacted on his ability to perform his role, there is no utility in considering whether the decision to terminate would have been made by a reasonable person in similar circumstances. [33] I accept the Respondent's submission that the Act and the Enterprise Agreement do not confer an entitlement to proportionate payment for long service leave when an employee terminates their services to avoid the employer terminating their services. However, I am not persuaded that this submission reflects the circumstances in this matter. The evidence confirms that the Applicant's illness had been ongoing for a number of months prior to the letter advising of unsatisfactory performance. -- 10 of 11 -- 11 [34] In the absence of persuasive evidence to indicate otherwise, I see no reason why the Applicant should not be taken at his word that his illness was the reason for his termination. Conclusion [35] Having considered the evidence and applicable legal principles, I am satisfied that: (a) the Applicant worked for the Respondent on a continuous basis between 3 January 2011 and 31 July 2020. The total number of long service leave week accrued is 12 weeks, 2 days and 7.5 hours; (b) the Applicant was suffering from psychological symptoms of depression and anxiety, constituting an illness for the purpose of s 95(4)(b)(i) of the Act; (c) the illness affected the Applicant's ability to perform his role at work; and (d) the Applicant's illness was the real and motivating reason behind his decision to terminate his employment. [36] I am satisfied that this application meets the requirements of s 95(4)(b)(i) of the Act. [37] I make the following order accordingly. Order Uniting Care Health to pay Justus Paul Buchholz the gross sum of $16,776.05, being his entitlement to proportionate long service leave, within 28 days of this order. -- 11 of 11 --