Ahern v IA Group Pty Ltd

[2014] QIRC 31

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Ahern v IA Group Pty Ltd [2014] QIRC 031
PARTIES:	Ahern, John
(Applicant)
v
IA Group Pty Ltd
(Respondent)
CASE NO:	B/2012/4
PROCEEDING:	Application to recover unpaid wages
DELIVERED ON:	13 February 2014
HEARING DATES:	25 and 26 July 2013
MEMBER:	Industrial Commissioner Black
ORDERS:	1.  Application dismissed
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR
UNPAID WAGES – Application for pro-rata long service leave after seven years employment –
employee resigned employment - reasons for termination claimed to include illness and incapacity and domestic or other pressing necessity
CASES:	Industrial Relations Act 1999 s 278, s43(4)(b)
APPEARANCES:	Mr. J. O'Donnell, Industrial Advocate, appearing on behalf of the Applicant. Mr S. Reidy, Counsel, instructed by Mullins Lawyers, for the Respondent.

Introduction

[1]      Mr John Ahern ("the applicant") was employed as an Architect by the IA Group Pty Ltd ("the respondent") from 13 April 2004 until 5 August 2011. Mr Ahern was employed by the Respondent for 7 years, 3 months and 23 days or approximately 7.3 years.

[2]      The applicant submitted his resignation on 6 July 2011 by giving four weeks notice due to expire on 29 July 2011. The letter of resignation is in the evidence as Attachment JW-3 to Exhibit 23. The letter was dated 6 June 2011 but the applicant said in his evidence that this was an error and that the letter should correctly have been dated 6 July 2011. Subsequently the applicant agreed to extend his departure date to 5 August 2011.

[3] In his application to the Commission the applicant alleges a breach of section 43 of the Industrial Relations Act 1999 (the Act) and seeks an order for proportionate payment of long service leave of $10,628.78. The application is made pursuant to s. 278 of the Act which relevantly provides that:

"Power to recover unpaid wages and superannuation contribution etc.

(1) An application may be made to the commission for an order for

payment of -

(a) an employee's unpaid wages; …"

[4] The entitlement to pro-rata long service leave after seven years service is set out at section 43(4) of the Act in the following terms:

"43 Entitlement

(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; or

(ii) a domestic or other pressing necessity; …"

[5]    During the proceedings evidence was called from 8 witnesses.

The witnesses for the Applicant were:

• John Ahern - Applicant;

• Iesha Stewart – Receptionist and administrative officer – IA Group;

• Dr Allan Wallace – General Practitioner;

• Dr Eric Guazzo – Specialist;

• Paul Parker - Physiotherapist;

• Robert Zemaitis - Psychologist; and

• Frances Thomas – Applicant's ex-wife.

The witnesses for the Respondent were:

• Robert Casey – Director of IA Group; and

• John Wojtaszak – Chief Financial Officer of IA Group.

[6]       In a decision dated 18 July 2013, I granted an application by the respondent asking that Mr Casey be allowed to give his evidence via telephone. In the end result Ms Iesha Stewart was also permitted to give evidence via telephone.

[7] Section 43(4) of the Act gives employees an entitlement on termination to proportionate long service leave after seven years service under specified conditions. If the employee brings the employment relationship to an end, the Act requires that the employee establish that the employment was ended because of illness or incapacity or because of a domestic or other pressing necessity.

[8]       In written submissions filed after the conclusion of the hearing, the applicant stated that his claim was based on circumstances relating to his health and wellbeing and his attempts to re-establish his relationship with his former wife. In more particular terms the applicant submitted that:

(a)	Section 43(4)(b)(i) has been satisfied by evidence establishing that he suffered from a chronic physical ailment which was exacerbated by his working environment and had a propensity to flare up when he was subject to stress and fatigue;
(b)	Section 43(4)(b)(i) has been satisfied by evidence establishing that he has suffered for some length of time from stress and fatigue and that latterly he has developed symptoms of anxiety and depression;
(c)	Section 43(4)(b)(ii) has been satisfied by evidence establishing that his work environment was a factor in the breakdown of his marriage and had he continued in employment with the IA Group his work environment would have had a negative impact on his attempt to re-establish his relationship with his former wife.

[9]    It follows that the applicant asserts that he ended his employment because of a combination of factors relating to his illness or incapacity and to domestic or pressing necessity.

Reasoning

[10]   In his letter of resignation the applicant did not provide any reason for leaving. In the final paragraph of his letter he said that he had enjoyed his time at the IA Group and wished the organization success in the future.

[11]    In paragraph 55 of his statement (Exhibit 3) the applicant said that the day after he dispatched his resignation letter he received a phone call from Rod Casey "who told me he wanted to discuss my resignation" and invited him to reconsider his decision. The applicant said that "I expressed to him that I could not continue in the position as it existed". It is significant at this point that the applicant did not say to Rod Casey that he could not continue working because of ill health or because of a domestic or pressing necessity. I construe the words "the position as it existed" to reflect on operational circumstances including staffing levels, but not to imply a personal incapacity on the part of the applicant to do the job because of ill health or some other physical impairment.

[12]   It was Rod Casey's evidence at paragraph 10 of his statement (Exhibit 22) that the applicant "did not mention any health issues at any stage during my discussion with him about his resignation and extending his time at the IA Group after his resignation". Mr Casey's statement was made in response to an assertion made by Mr Ahern in his statement in reply (Exhibit 4) at paragraph 16 wherein he said that "I can categorically state that Rod Casey knew of my health situation, as well as my troubled marital relationship". The reference to his marital relationship is irrelevant in that it must be referring to a period when the applicant was married. He divorced in 2010. Further the proposition that Casey knew of his health situation is different to asserting that Casey knew that the substantive reason for his resignation was because of his ill-health. On his own evidence, the applicant stops short of saying that he told Casey he had to give up the job because of his ill-health.

[13]   On 3 August 2011 the applicant and Mr Wojtaszak conversed over the telephone about the applicant's termination pay. During the conversation the applicant agreed to defer his departure date by one week. Between 8 August and 25 August 2011 the applicant performed contract work for the IA Group. It appears that the applicant ended his contract relationship because Mr Wojtaszak refused to pay pro-rata long service leave. This position is disclosed in an email (Exhibit 6) that the applicant sent to Rod Casey on 25 August 2011 where he said inter alia "in view of the stance taken by John Wojtaszak, I see no benefit to either party in me having any ongoing relationship with IA Group". These circumstances do not assist the applicant's claim that he ended his employment with the IA Group because of illness or incapacity. While I accept that no inconsistency necessarily arises from the applicant working out his notice, he did not appear to raise any illness or incapacity restriction when he agreed to undertake contract work nor when he stopped doing contract work. His reason for ending the contract arrangement was because his long service leave claim had been rejected.

[14]    On 10 August 2011, Mr Wojtaszak forwarded a letter to the applicant setting out the termination payments. The letter is in the evidence as attachment JW-4 to Exhibit 23. In the letter Mr Wojtaszak referred to the telephone conversation between himself and the applicant on 3 August 2011 wherein it appears that the applicant first claimed pro-rata long service leave. In the letter Mr Wojtaszak says that "I am not aware of any of the conditions identified in the Queensland Government Fact Sheet on Long Service Leave (Fact Sheet) supporting a pro rata payment in your situation".

[15]    The applicant responded to the letter via email on 18 August 2011. The email is in the evidence as Attachment JW-5 to Exhibit 23. In the email the applicant relies on the contents of the Fact Sheet in asserting that Mr Wojtaszak was incorrect in concluding that the applicant did not have an entitlement to pro-rata long service leave. The applicant attached a copy of the Fact Sheet to his email and said that he had highlighted the sections that "specifically relate to Prorata Leave being applicable after 7 years on continuous service". The highlighted copy of the Fact Sheet is in the evidence as Exhibit 5.

[16]   Mr Wojtaszak responded to the applicant's email on 19 August 2011 (Attachment JW-6 to Exhibit 23). In his email reply Mr Wojtaszak says that he had read the areas highlighted but that the conditions for a pro-rata payment "do not apply in your situation". Mr Wojtaszak then proceeded to state the following:

"The facts of the matter are that you voluntary resigned (ie IA Group did not terminate your employment) for reasons since indicated to Rod and I to centre around the fact that:

(i)       you were unhappy with your remuneration package;

(ii)     you were unhappy with some of the administrative changes initiated to contain the losses of the office and in particular the downgrading of the office from a standalone office to an outpost of the Brisbane office;

(iii)   you felt that you needed an architect in the office of suitable experience for you to be able to properly discharge your duties and did not feel the business was prepared to support you in this area although I am not aware of any formal request from you seeking such a position; and

(iv)     you were unhappy that the business was not, at this point, prepared to provide the office with a new photocopier and scanner."

[17]  The applicant responded to Mr Wojtaszak's email (Attachment JW-6 to Exhibit 23) on the same day and stated that all of the items listed in Mr Wojtaszak's email were "reasons for my resignation". He then went on to say however that "this is not a discretionary process where you validate my reasons for resignation". The applicant also indicated that he would be taking his claim to Fair Work Australia.

[18]    During cross-examination the applicant was questioned about the Fact Sheet and asked to explain the circumstances which gave rise to an entitlement to pro-rata long service leave. The evidence is recorded at T1-25:

"And what were the other circumstances?---I considered my – the situation of

stress and the impact it had on my marriage to the point of divorce as being
other circumstances."

[19]     While this was the response spontaneously given by the applicant he subsequently added to his response the words "and my health" (T1-25). In his first response the applicant's evidence is to the effect that he resigned his employment because of the impact of his work on his marriage which in turn led to his divorce. This evidence is given notwithstanding that the applicant's marriage practically ended in 2009 with his separation from his wife, and legally ended in 2010 with his divorce. It is not therefore possible for this first response to be considered a valid or genuine reason for his 6 July 2011 resignation.

[20]  On 7 September 2011 the applicant provided a statement (Exhibit 7) to the Fair Work Ombudsman (FWO) in support of his claim for pro rata long service leave. In his statement the applicant referred to a reduction in staffing numbers "which made the job almost impossible to do" and that this and other matters made his position untenable and that he "was restricted in how I could deliver, promote and run the office and the business". The applicant concludes that:

"I considered all of the above to render my position untenable, I was restricted

in how I could deliver, promote and run the office and the business.

…

On 6th June I emailed my letter of resignation to the Managing Director …"

[21]     In saying that he considered that specified factors rendered his position untenable, the applicant is identifying the reasons for his resignation. There is no reference to illness or incapacity or to a domestic or pressing necessity. This explanation is consistent with the view he expressed to Mr Casey on 7 July 2011 when he said that he "could not continue in the position as it existed".

[22]   On 14 October 2011 the applicant swore a statutory declaration for the purpose of supporting his earlier statement to the Fair Work Ombudsman. In this document the applicant said inter alia that:

"I regretfully had to terminate my employment with the company due to what I perceived as being a totally untenable situation. I had not received adequate support or backup and this ultimately impacted my personal life and health. I had to resign to ensure that I could at least have a chance of rebuilding my personal life and ensuring I had some future with my family."

[23]    This is the first occasion since his resignation on 6 July 2011 that the applicant has connected matters relating to illness and domestic considerations with his decision to end his employment.

[24] While the applicant said he made the second statement in response to an invitation from the FWO in the meeting on 7 September 2011 to provide additional material, I think it can reasonably be inferred that the applicant made this second statement to the FWO after he had developed a better understanding of the conditions that needed to be satisfied in order to secure access to section 43(4)(b) of the Act. This approach is illustrated by the applicant's inclusion in the second statement of a reference to his "family" notwithstanding that at the time of his resignation he was not married, he was not living with his ex-wife, and he did not have any children. As such his characterisation of his association with his ex-wife at that point in time as "family" is an embellishment on the facts. It is also noted that while the applicant made some reference to his health, he did not provide any explanation of his illness or the nature of his incapacity, if any.

[25] The applicant's complaint to the FWO was dismissed on 16 November 2011. It was the finding of the FWO that it could not "establish a link between any familial issues and a genuinely held belief for the need to terminate the engagement". In its disclosed reasons for decision the FWO did not address the other limb of section 43(4)(b) dealing with illness or incapacity.

[26]    In his application to the Commission dated 26 March 2012, the Applicant stated, in effect, that he resigned his employment because a requirement to work excessive hours was having an adverse affect on his marriage. This ground was advanced notwithstanding that at the date of his resignation the applicant was not married and was in truth only in the early stages of courtship with a woman who happened to be his ex-wife. The applicant was married to Frances Thomson in 2006 but he separated from her in 2009 and was divorced in 2010. Some time in 2011 the applicant and Ms Thomson took steps to revive their relationship. According to the applicant in June 2011 they spent a week together on holiday in Tasmania during which period he made up his mind to resign. At the time of his resignation the applicant was not living with Ms Thompson. By the time of the hearing in July 2013, these arrangements had changed, but not substantially. At this point in time the applicant was residing in Ms Thompson's holiday home on Magnetic Island, however Ms Thompson's principal place of address was an apartment in North Ward, Townsville. It appeared however that the couple did spend time together in the holiday home on week-ends.

[27]    The applicant's first statement in these proceedings filed in January 2013 comprised 97 paragraphs. Much of the statement contained historical and peripheral material and is not directed at establishing the real or motivating reason for his resignation. Through much of the statement the applicant complains about an alleged under-resourcing of the Townsville office. In March 2011 when his office administrator (Iesha Stewart) resigned, she was not replaced and it was the applicant's view that this "decision greatly impacted on my time and ability to effectively carry out my role in the Townsville Office, and greatly increased the stress levels in my work and personal life".

[28]    The applicant said that it was the norm for him to work 60 hours a week, an outcome which he attributed to inadequate staffing levels and a lack of resources. It was the evidence of Mr Wojtaszak that staffing levels and resources were commensurate with the performance of the Townsville office. He said that the office only recorded a profit in two out of the seven years that the applicant was employed. Further, in the last four years of the applicant's employment, the percentage of available time that was billed by the Townsville office was less than 45 per cent. According to Mr Wojtaszak, a review of utilisation rates for the 2010-2011 financial year showed that no member of staff produced a rate in excess of 49 per cent and the applicant's utilization rate was 20 per cent. Timesheets in the evidence as Exhibits 10, 11 and 12 show that the applicant completed 8.25 billable hours in the week ending 10 June 2011; 3.75 billable hours in the week ending 17 June 2011; and 6 billable hours in the week ending 24 June 2011. There is a pronounced divergence in the evidence between the applicant and Mr Wojtaszak about the demand for work and the output within the Townsville office.

[29]    The applicant stated that the extent of untaken annual leave was a true reflection of the pressures of work. In paragraph 62 and onwards of his statement, the applicant includes information relating to annual leave and states or implies that the staffing levels in the office did not allow him to take as much annual leave as he would like. In this regard I note that the applicant was employed by the IA Group for 7.3 years. His total annual leave entitlement would have been 29.2 weeks. At the date of termination he had 9.73 weeks annual leave untaken. This meant, on average, he had taken 2.67 weeks leave each year. Setting aside any determination on whether this period of leave was significantly different from the norm for executives, it is relevant to note that there was no evidence to the effect that the applicant had requested annual leave and had his request or requests rejected.

[30]   Part of the history given to Mr Zermatis included the statement that the applicant was working on up to 35 jobs at any one time. In response, it was Mr Wojtaszak's evidence that the actual number of active jobs at any given time would have been considerably less than 35. He said that the average number of monthly invoices issued provided a true measure of the number of active jobs. In this regard, it was his evidence that in 2008 ten invoices on average were issued each month for work performed by the Townsville office. In 2009 eight invoices per month were issued and in 2010 thirteen invoices per month were issued.

[31]    In February 2011 the IA Group decided to rationalize the Townsville operations by reducing staff numbers and providing some administrative support out of Brisbane. It was the view of the IA Group that while the applicant had sought additional resources, the office did not have the workload to justify an increase in staffing.

[32]    The applicant stated at paragraph 78 of his first statement (Exhibit 3) that he:

"…was never in any doubt that I could substantiate that my health was at risk

because of the pressures of my workload, and the onerous amount of hours I was required to put in. I say this because I knew that my medical records would verify, in clear terms, that I have had a disability which, when I am fatigued, deteriorates to such an extent that the pain becomes acute, and has a negative impact on my ability to concentrate."

[33]    The difficulty with this retrospective assertion is that the question for determination is: what was the real or motivating reason for his resignation on 6 July 2011, and not what the applicant decided to include in his witness statement when he drafted it in early 2013.

[34]    In paragraph 81 of his first statement and onward the applicant provides a history of his problem with neck pain. He said the problem has existed since 1987. He said at times the problem manifests itself in severe headaches and nerve pain in his neck and down his right arm and right hand. He said that in times of stress and fatigue the neck problem has had a debilitating effect on him. Despite having to deal with this condition since 1987 the applicant did not provide any evidence to the effect that it interfered with his normal work or that he had to take significant periods of sick leave to allow his condition to be treated. To the contrary, the evidence was to the effect that the applicant took very little sick leave during his period of employment.

[35]    There is therefore little evidence that the neck problem experienced by the applicant seriously or significantly diminished his capacity to perform his normal duties with the IA Group. The evidence of Mr Parker did establish that the applicant experienced a major episode of pain in 2007, however this major event had not been repeated since. No evidence was led about the impact of the 2007 episode on the performance of work for the IA Group by the applicant.

[36]    Dr Guazzo provided a report in relation to the applicant's neck condition which was dated 12 October 2012. He stated that the applicant was suffering from cervical spondylosis. He had previously seen the applicant in 1997 and 2004. There is nothing in the report that causally links the applicant's separation from the IA Group with the condition being treated by Dr Guazzo. It is relevant that there was no requirement for the applicant to see Dr Guazzo between 2004 and the date of his resignation from the IA Group. Dr Guazzo's report makes no reference to the applicant's marital arrangements.

[37]   Robert Zemaitis, a registered psychologist, gave evidence in the proceedings. He had prepared a report about the applicant dated 26 November 2012. The applicant had been referred to Mr Zermaitis by Doctor Allan Wallace. He first saw the applicant in April 2012, some nine months after he decided to resign his employment with the IA Group. Zemaitis's report is predominantly a summary of a history given to him by the applicant. The report is not contemporaneous and does not contain much more than the applicant's own version of events provided retrospectively. While there are references to a relationship breakdown in the referral letter provided by Dr Wallace, this issue is not canvassed in the history provided by the applicant.

[38]   There is nothing in the report of Mr Zemaitis that assists in establishing a causal connection between any psychological illness and the applicant's employment with the IA Group. The report does reflect on the applicant's circumstances as at November 2012, but these circumstances post date the applicant's separation from the IA Group. The report does not make any reference to the reasons associated with the applicant's resignation from the IA Group. In his oral evidence Mr Zemaitis did say however that the applicant described a stressful time towards the end of his employment where he had limited resources and no secretarial support. This led Mr Zemaitis to the understanding that this was the reason why he chose to leave the IA Group. It is noted however that a "very stressful time" and "operational difficulties" relating to resourcing do not constitute contemporaneous medical diagnoses to the effect that the applicant was ill or had an impaired capacity at the time he resigned.

[39]    At paragraph 21 of his second statement (Exhibit 4) the applicant stated that all the witnesses giving evidence on his behalf can validate "various aspects of my claim that my marital relationship and my health and wellbeing were adversely affected by my work situation at IA Group in Townsville". This however is not the question to be answered. The question to be answered is what was the real or motivating reason for the applicant's resignation? While it can be accepted that across the duration of his employment with the IA Group the applicant was confronted with both health and marital challenges, this conclusion falls well short of establishing that the applicant ended his employment with the IA Group on 6 July 2011 because of problems with his health or because of his failed marriage.

[40]   Iesha Stewart provided two statements in support of the applicant. Ms Stewart worked for the IA Group in Townsville as a receptionist from October 2008 to March 2011. In broad terms, her evidence tried to support a view that the Townsville office had a high workload and was under resourced. Despite her job classification, Ms Stewart was not reticent in passing judgment on the professional capacity of various individuals employed by the IA Group nor in rating the organisational competence of the IA Group.

[41]   Ms Stewart presented a distinctly parochial view of operational matters. She acknowledged in one instance that when John Ahern asked national office for professional senior support staff to assist him, such a person was sent. However, she then derided the effort by concluding that often the support was futile because the person seconded was not sufficiently experienced. She then complained that the cost of the secondment was an expense against the Townsville office budget. These forays diminish Ms Stewart's credibility because it was doubtful that she was qualified to make these evaluations. If she was simply parroting complaints that the

applicant had made to her – then she should have attributed the sentiments to him in

her statement. The respondent was correct in challenging the admissibility or
relevance of a substantial part of Ms Stewart's statements.

[42]    The only reference in Iesha Stewart's two statements to the applicant's health was at paragraph 16 of her first statement where she said that she expected that Ahern would have a stroke at work or a nervous breakdown and that his "disturbingly high stress" worried her. Ms Stewart did not specify at what point in time she arrived at this view, however it would have been prior to March 2011 when she left the employment of the IA Group. Ms Stewart's statements did not include any mention the applicant's marital circumstances.

[43]   The applicant's ex-wife, Frances Thompson, provided a statement which dealt primarily with the reasons for the breakdown of her marriage to the applicant in 2009 when the couple separated prior to a divorce in 2010. In her statement (Exhibit 21) Ms Thomson says at paragraph 14 that subsequent to the divorce she and the applicant have "begun to see each other again" and that the applicant's "leaving the IA Group has to me been a positive step in reconnecting and rekindling a healthy relationship". This evidence falls well short of supporting a proposition that the real or motivating reason for the applicant's resignation was his desire to enter a romantic liaison with a woman who was also his ex-wife. It is more likely a wistful reflection on the applicant's circumstances including his unemployed status which meant that work did not provide any barrier to his rekindling efforts.

[44]   Paul Parker, a qualified physiotherapist, provided a written report relating to the applicant's neck condition. The report was dated 9 May 2012. In his report Mr Parker notes that the applicant had attended his practice for treatment of chronic neck pain for 15 years. He said that the applicant experienced severe arm pain caused by stenosis of the C7 nerve root in 2007. He said that the applicant attended his rooms in 2007 for intermittent treatment of neck and arm pain. The applicant was informed by Dr Guazzo that surgery would be appropriate when symptoms could no longer be tolerated. Mr Parker said that since 2007 the applicant has attended physiotherapy to try to avoid surgery but that he has clinically deteriorated between 2007 and 2012. However in his oral evidence Mr Parker said that the major episode that he had treated over the 15 years was the episode in 2007. Nothing before or after 2007 assumed this significance. No statement or recommendation was included in the report to the effect that the applicant's condition necessitated the ending of his employment with the IA Group or to that he should be restricted in the number of hours he worked each week.

[45]    In his report Mr Parker says that "John reports that pain and stress is now affecting personal relationships with his wife". The difficulty with this statement is that as at 9 May 2012 the applicant did not have a wife and to the extent that the statement bore some relationship with the revival of a romantic link with his ex-wife, at this point in time the applicant was in an apparently stable relationship of sorts with his ex-wife. There is a significant failure in the report to provide conclusions contemporaneously linking episodes of pain with particular workplace events.

[46]   Dr Allan Wallace gave evidence as the applicant's treating physician. He had been seeing the applicant since 2001. He provided a letter of support dated 3 January 2013. The letter commences with the words "I have been approached by Mr Ahern to write a letter in support of his claim for the pro rata Long Service Leave he had amassed during his seven years service to the IA Group". The letter should be treated as a personal reference rather than a medical report, however the letter did include the statement "when his preexisting neck injury flared causing pain and numbness in his right arm and hand the added stress and fatigue caused by his heavy workload significantly increased his suffering". In this reference the letter appears to erroneously connect a flaring of the applicant's pre-existing neck injury with a heavy workload causing an increase in suffering.

[47]    The error arises from the fact that the major or significant episode or flare up of the neck problem occurred in 2007 and would therefore not be relevant to the circumstances associated with the applicant's resignation on 6 July 2011. Alternatively if the doctor was referring to some other flare-up he did not say in his letter when the flare-up occurred. Hence it is difficult to make any finding concerning its connection with the applicant's decision to resign. Significantly the doctor did not, either in his letter of support or his oral evidence disclose any information, nor venture any opinion about whether the applicants neck condition could prevent the applicant from working or be so disruptive to the normal performance of his duties that would necessitate his stopping work or severely curtailing the number of hours he work.

[48]    While the letter includes reference to the applicant's marriage the reference includes significant factual errors. In respect to marriage, the doctor causally connected the departure of Ms Stewart from the IA Group with the breakdown of the applicant's marriage. The error arises in that Ms Stewart left the IA Group in March 2011 which was well after the applicant was divorced in 2010.

[49]    It is relevant that the reports of Mr Zemaitis, Mr Parker and Dr Guazza all post date the applicant's date of termination. Mr Parker and Dr Guazzo had been seeing the applicant since 1997 confirming that the condition or conditions were of long standing. Significantly the applicant did not have any need to see Dr Guazza in 2011 in the lead up to his resignation. Mr Zemaitis did not commence seeing the applicant until April 2012 which was nine months after the applicant left the IA Group and at a time when he was affected by a number of challenges that post dated his time with the IA Group.

Conclusion

[50]   In Computer Sciences of Australia v Leslie[1] the Industrial Commission of NSW in Court Session determined that the case before them should be resolved by asking the following questions:

(i)      was the reason claimed for termination one which fell within the section? (section 43(4)(b) of the Act in this jurisdiction)

(ii)     was such reason genuinely held by the worker and not simply colourable or a rationalisation?

(iii)   although the reason claimed may not be the sole ground which actuated the worker in his decision to terminate, was it the real or motivating reason?

(iii)   was the reason such that a reasonable person in the circumstances in which the worker found himself placed might have felt compelled to terminate his employment?

[1] Computer Sciences of Australia Pty Ltd v Leslie1 (1983) 83 AR (NSW) 828

[51] In the context of this case the specific matter for determination is whether the applicant resigned his employment with the IA Group because of illness or incapacity or because of circumstances associated with his relationship with his ex- wife. In respect to the former reason the question to be answered is whether this reason was genuinely held by the applicant as opposed to a rationalisation and whether this reason was the real or motivating reason. In respect to the latter reason the same questions need to be answered but after a determination is made about whether this reason is one which falls within section 43(4)(b)(ii). If it is held that the reason does not fall within the section, then no further consideration needs to be given to it.

[52]    In a process of determining what is the genuine and the real or motivating reason for resignation, the applicant has placed himself in a difficult position by providing a series of different versions about why he ended his employment as disclosed by the following chronology:

(i)      In his letter of resignation on 6 July 2011 no reason is disclosed.

(ii)     In his phone conversation with Rod Casey on 7 July, it was Casey's evidence that the applicant did not mention his health as a reason for resignation.

(iii) In an email exchange with Wojtaszak on 19 August 2011, the applicant appeared to endorse a list of reasons set out by Wojtaszak which represented Wojtaszak's understanding of why the applicant resigned. Wojtaszak set out these reasons in response to the applicants claim that he had an entitlement to pro-rate long service leave. The list of reasons related to operational matters not to matters contained in section 43(4)(b).

(iv)    On 25 August 2011 the applicant withdrew from a contract arrangement with the respondent, not because of stated ill health or relationship reasons, but because the respondent would not pay him pro rata long service leave.

(v) In his 7 September 2011 statement to the FWO the applicant referred to operational reasons not to matters contained in section 43(4)(b).

(vi)    In his second statement to the FWO on 14 October 2011, the applicant said that the reason for his resignation was because workplace circumstances "impacted my personal life and health". Further the applicant said that "he had to resign" to enable him to rebuild his personal life and to ensure that he "had some future" with his family. Hence it is not until three months after his employment ended that the applicant introduced reasons which are capable of falling within 43(4)(b).

(vii)  Notwithstanding the reasons advanced on 14 October 2011, in his application to the Commission dated 27 March 2012 the applicant relied solely on the proposition that he resigned his employment because a requirement to work excessive hours was having an adverse affect on his marriage.

[53]   In the circumstances it is not surprising that the respondent asserted at paragraph 9 of its final submission that the applicant:

"…relies on a grab bag of illness, incapacity and domestic necessity although

he has not nominated which of these was the real and operative reason for the resignation. It is submitted that, along with the five articulations of his case, this is a factor which calls for an adverse inference to be drawn against the Applicant."

[54]   The adverse inference suggested by the applicant's multiple choice approach to the

selection of a reason for termination is that the applicant has changed, modified or

concocted the reasons for his resignation well after the event. The rewriting of

history being undertaken to achieve a better matching between the reasons advanced

and the section 43(4)(b) conditions. This is the process of rationalisation

2

contemplated in Computer Sciences v Leslie. Having regard to all the evidence, the prosecution of the applicant's case based on multiple reasons and reasons which change over time, and a failure to establish the requisite causation in the relevant areas, it is difficult to accept that the reasons of ill-health or relationship building advanced by the applicant were the real or motivating reasons for his resignation.

[55]   The applicant said that in 2011 he reconnected with his ex-wife. While he did not state the date of reconnection he did indicate in his evidence (T1-33) that immediately prior to his resignation he took a weeks' leave and holidayed in Tasmania with his her. During the break he said that he:

"…came to the view that the position in the office had become untenable and

that I had to make changes in life if I was to again get a correct work/life balance. I had again been caught in the position of neglecting my family in order to complete the tasks in the office."

[56]    The applicant's attempts to support his claim by reference to "domestic necessity" or "pressing necessity" in circumstances where at the time of the resignation he was not married nor in any de facto relationship, he was not living with his ex-wife, and he did not have any children, cannot be sustained. While he and his ex-wife may have linked up romantically a little time before his resignation and he may have had a genuine desire to upgrade the status of the relationship, these circumstances in my view do not constitute either a domestic necessity or a pressing necessity. This view is supported by reference to the relevant authorities.

[57]   In Robert John Vermeer v Montague Fresh[3] Brown C adopted the definition of

“domestic” included in the Macquarie Dictionary as appropriate for application in

these types of proceedings. The dictionary defined the word "domestic" to mean

"….of or pertaining to the home, the household or household affairs".

[3]

[58]   While in Saxby v Southern Downs Security Pty Ltd[4], Fisher C. addressed the meaning to be given to the words "pressing necessity":

"Various decisions of this Commission have considered the meaning of 'pressing necessity' by reference to the definitions of the words 'pressing' and 'necessity' found in the Macquarie Dictionary: Vermeer v Montague Fresh Pty Ltd; Hawkins v Torres Strait Island Regional Council; and Mihill v Harcourt Engineers Pty Ltd t/as Harcourt Consulting Engineers. In each of those decisions the definition of 'pressing' was given as "'urgent: demanding immediate attention' and 'necessity' as 'something necessary or indispensable'.

[4]

[59]    In Franks v Kembla Equipment Co.[5] Sheldon J applied the following test in dealing with a case of "domestic necessity":

"The test, I would suggest, is whether there is a really serious problem in the home, although not necessarily a crisis. On the one hand, the colourable and frivolous should be rejected but on the other, over-exacting standards should not be adopted. After all, what is being dealt with is not a sphere-shaking issue but a reason for terminating employment and a material consideration must be whether the domestic situation is such that a reasonable man might feel compelled to seek its solution by terminating his employment. If a really sick wife, coupled with economic worries and difficulty in coping with small children, falls short of creating a domestic necessity, then it is hard to imagine what domestic chaos must exist before the test is satisfied."

[5]  5

[60]    In applying these authorities to the facts and circumstances of this case it is my view that the appellant's desire to re-establish a relationship with his former wife cannot be deemed to be a domestic or pressing necessity. In the first instance the relationship between the two cannot appropriately be defined as pertaining to the home or household affairs. Nor do I accept that, in the circumstances of this case, that the applicants desire to rekindle his former relationship could be said to be attended by urgency or be something that demanded immediate attention. Neither do I consider that a reasonable person would accept that a solution to a romantic aspiration would ordinarily be found in the termination of ones employment.

[61] In terms of the ill health limb of section 43(4)(b), the applicant has failed to develop an adequate causal connection between any alleged medical condition or claimed physical impairment on the one hand and his work performance on the other hand, such as to enable a conclusion to be arrived at that a reasonable person in the same circumstances would have felt obliged to end his employment. The applicant had been treated for his neck condition since 1987 but he did not lead any evidence to establish how this condition had prevented him or limited him in the undertaking of his normal work. A typical measure in such cases may have been the number of sick days taken or the need to periodically reduce hours of work or to vary the functions he performed. But no evidence of this nature was forthcoming. Nor did the applicant provide time critical evidence establishing that at a particular point in time, and prior to his resignation, his medical condition had worsened to the extent that his prior capacity to undertake the work had materially reduced. At the end of the day generalised rationalisations provided retrospectively are insufficient to substantiate a conclusion that the applicant needed to change his employment arrangements in July 2011.

[62]   The appellant had ample opportunity to disclose to his employer his real or motivating reason for leaving. He had a good relationship with Rod Casey and it would have been expected that the day after his resignation, when Casey rang him and asked him to reconsider his decision, that he would have disclosed the real reason for his departure. For example, he might have responded to the effect that he could not reconsider because his long standing neck condition had worsened to the extent that he could not keep going in his current position; or he could have explained that he had been trying to re-establish a relationship with his ex-wife, but that she had insisted that a reconciliation was only possible if he changed jobs. The facts are that the applicant did not say any of these things, but said that he could not continue in "the position as it existed". The applicant could have had a similar discussion with John Wojtaszak on 3 August 2011, but having regard to the exchange of emails on 19 August 2011, it appears only operational matters were raised by the applicant. Finally in his first statement to the FWO on 7 September 2011 the applicant concluded that he considered "all of the above to render my position untenable, I was restricted in how I could deliver, promote and run the office and the business". The content of the first FWO statement confirms that it was operational reasons that were motivating the applicant to resign.

[63] By the time the applicant prepared his second FWO statement his story began to change and different reasons for resignation were advanced. From this point on he embarks on a course of identifying facts and circumstances which might fit the requirements of section 43(4)(b) and endeavours to retrospectively attach these matters to the reasoning behind his resignation. What emerges is not a single compelling reason for termination but a potpourri of reasons where the applicant has looked at events and circumstances in his past life and considered how they may be linked to his employment and to a decision to end his employment. The applicant's attempt to rewrite history is transparent and leads to a conclusion that the reasons for resignation advanced by him in the proceedings were not genuine and were not the real or motivating reason or reasons.

[64] By section 43(4), the Act does not provide a general benefit for everyone who completes 7 years service. What the Act does is create an exception to a general rule and defines the exception by reference to illness or incapacity or to domestic or other pressing necessity. The Act contemplates a set of circumstances where prior to the decision to terminate, a significant episode emerges or an over time event develops which leads the employee to conclude that it is in his best interest to end his current employment arrangement. These circumstances necessarily involve elements of causation which link the significant episode or event to the decision to resign.

[65]    The applicant has not discharged the onus of establishing that the real or motivating reason for his resignation was because of illness or incapacity or that it was because of a domestic or other pressing necessity. His application is therefore dismissed.

[66] I order accordingly.

2 Computer Sciences of Australia Pty Ltd v Leslie (1983) 83 AR (NSW) 828

Robert John Vermeer v Montague Fresh Qld Pty Ltd (2007) 185 QGIG 220

Melanie Saxby, Department of Justice and Attorney-General AND Southern Downs Security Pty Ltd

(B/2009/69) - Decision <

Franks v Kembla Equipment Co. Pty Ltd (1969) AR 17 at 19