Schipp v The Star Entertainment Qld Limited - [2019] QIRC 49

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Schipp v The Star Entertainment Qld Limited [2019] QIRC 049
PARTIES:	Schipp, David (Applicant) v The Star Entertainment Qld Limited (Respondent)
CASE NO:	B/2018/39
PROCEEDING:	Proportionate payment of long service leave
DELIVERED ON:	21 March 2019
HEARING DATES:	18 January 2019 29 January 2019 18 February 2019
MEMBER: HEARD AT:	Thompson IC Brisbane
ORDER:	The application is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – Application for proportionate payment of long service leave - Statement of Agreed Facts - Illness-based incapacity for work - Pro rata long service leave entitlement - Termination of employment - Statutory interpretation - Legislation - Act does not confer a pro rata long service leave entitlement (continuous service in excess of seven years) when an employer dismisses an employee because of illness-based incapacity - Application dismissed.
LEGISLATION:	Industrial Relations Act 2016, s 95 Industrial Relations Act 1999, s 58, s 73, s 77 Disability Discrimination Act 1992 (Cth)
CASES:	Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at 78 Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 at 6 Review of Long Service Leave Entitlement [2000] 124 QGIG 236
APPEARANCES:	Queensland, Parliamentary Debates, Legislative Assembly, 22 March 2001, 94-97 (Gordon Nuttall, Minister for Industrial Relations) Maunder v Rane Brothers Pty Ltd [2003] 172 QGIG 1342 Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728 at [24] Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031 Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218 J P Dundovich re J Dundovich v P&O Ports - PR923358 [2002] AIRC 1206 CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at 38 Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989 Elmes v Carpentaria Shire Council [2016] QIRC 118 Elaina Tito v Pilbara Iron Company (Services) Pty Limited [2018] FWC 7469 at [72] Mr D. Schipp, Applicant Ms K. Niehoff of The Star Entertainment Qld Limited, Respondent

Reasons for Decision

Background

An amended application for proportionate payment of long service leave was filed with the Industrial Registrar by David Schipp (Schipp) on 18 October 2018 in which he sought that The Star Entertainment Qld Limited (the respondent) be ordered to pay pro rata long service leave accrued by Schipp during a period of continuous employment from 26 May 2008 to the termination of his employment by the respondent on 28 April 2018. The period of continuous employment was identified as nine years, eleven months and three days.
On 30 November 2018 the Queensland Industrial Relations Commission (Commission)issued a Further Directions Order in which the parties were required to file an Agreed Statement of Facts by 4.00 pm on Friday 14 December 2018.
Statement of Agreed Facts
The parties agreed that the Commission should determine final relief in the application for a proportionate payment of long service leave in the following terms:

·determine whether s 95(4)(c)(i) of the Industrial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QIRC 49
Decision Date: 21 March 2019

CaseChat Overview and Summary

The case of Schipp v The Star Entertainment Qld Limited involved an application for a proportionate payment of long service leave by Schipp, who had been dismissed from his employment by The Star Entertainment Qld Limited. The dispute centred on whether Schipp, who had been absent from work due to illness for an extended period, was entitled to a pro rata long service leave payment under section 95(4)(c)(i) of the Industrial Relations Act 2016 (the Act). The Queensland Industrial Relations Commission (the Commission) was tasked with determining whether the Act conferred a pro rata long service leave entitlement when an employer dismissed an employee due to illness-based incapacity.

The central legal issue before the Commission was the interpretation of section 95(4)(c)(i) of the Act, specifically whether an employee dismissed due to an illness-based incapacity for work was entitled to a proportionate payment of long service leave. The Commission had to consider the meaning of "dismisses the employee for a reason other than the employee's conduct, capacity or performance" in the context of a pro rata long service leave entitlement. The Commission was also required to determine if the termination of Schipp's employment due to his inability to fulfil the inherent requirements of his role constituted a dismissal for a reason "other than conduct, capacity or performance".

In reaching its decision, the Commission considered the relevant statutory provisions and case law, including the principle articulated in Project Blue Sky v Australian Broadcasting Authority that a court must give words in a statutory provision their intended legal meaning, which may differ from their literal or grammatical meaning. The Commission concluded that the term "capacity" in the context of section 95(4)(c)(i) referred to the employee's ability to perform the inherent requirements of their role. Given that Schipp's termination was due to his inability to fulfil these requirements, the Commission found that this did not fall under the category of dismissal for a reason "other than conduct, capacity or performance". The Commission also noted that the termination was not based on conduct, capacity, or performance but rather on Schipp's personal medical incapacity, which was not work-related. Consequently, the Commission held that the Act did not confer a pro rata long service leave entitlement in these circumstances.

The application was dismissed by the Commission. The Commission found that Schipp's dismissal due to his inability to fulfil the inherent requirements of his role, which was due to his personal medical incapacity rather than any conduct, capacity, or performance issue, did not qualify as a dismissal for a reason "other than conduct, capacity or performance" under section 95(4)(c)(i) of the Act. Therefore, Schipp was not entitled to a proportionate payment of long service leave.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

On 30 November 2018 the Queensland Industrial Relations Commission (Commission)issued a Further Directions Order in which the parties were required to file an Agreed Statement of Facts by 4.00 pm on Friday 14 December 2018.Statement of Agreed Facts The parties agreed that the Commission should determine final relief in the application for a proportionate payment of long service leave in the following terms: The initial application filed by Schipp had asserted that the pro rata entitlement based on s 95(4)(c)(ii) of the Act was due because of the employment being unfairly terminated. Subsequently an amended application was filed under s 95(4)(c)(i) of the Act that alleged the termination of employment was for a reason "other than the employee's conduct, capacity or performance". The Commission is therefore not required to determine whether Schipp's employment was terminated in an unfair manner. For the purpose of the Act, Schipp was an "employee", had service with the employer in excess of seven years and should the application be successful the amount payable would be $5,682.40 plus interest from 28 April 2018. The respondent in correspondence (dated 28 April 2018) terminated Schipp's employment for the following reason:Your employment has been terminated on the basis of you being unable to fulfil the inherent requirements of the role of Games Dealer. A more complete reasoning for the termination was provided to Schipp in correspondence (dated 2 May 2018) which included: The question for the Commission is whether the provisions of s 95(4)(c)(i) of the Act confers a pro rata long service leave entitlement when an employer dismisses an employee because of an employee's incapacity through illness. Section 95 of the Act includes that employees who have completed at least seven years continuous service are entitled to a proportionate payment of long service leave if: It was accepted, based on case law, that employees are exempt from proportionate payment if they "resign" for a reason other than illness or capacity; or a domestic or other pressing necessity or the passing of time. Also, the same applies for employees who are lawfully and fairly dismissed for reasons of misconduct. The meaning of "dismisses the employee for a reason other than the employee's conduct, capacity or performance" within s 95 of the Act (and in particular capacity) needs to be considered within the context of a proportional long service leave entitlement including consistency and fairness. In the matter of Project Blue Sky v Australian Broadcasting Authority[1] it was stated:…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[1] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at 78

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The matter for determination is whether an employee dismissed for an illness or medical incapacity is entitled to a payment for proportionate long service leave. An illness incapacity should fall into the category of dismissal for "reason other than conduct, capacity or performance" when applied to a long service leave entitlement. The reading of the long service leave legislation by the respondent could have the consequences of an employer telling an employee, in circumstances where a pro rata payment for long service leave is available that unless they resign their employment they can be dismissed and not receive payment therefore leading to a constructive dismissal.Conclusion The determination by the Commission was limited in nature as a consequence of the parties having in a Statement of Agreed Facts agreed that the Commission:·determine whether s 95(4)(c)(i) of the Industrial Relations Act 2016 (the Act) confers a pro rata long service entitlement (continuous service in excess of seven years), when an employer dismisses an employee because of an employee's illness‑based incapacity for work. Whether the terms contained within the Statement of Agreed Facts were equally beneficial or otherwise to both parties is not a matter that the Commission ought to interfere with, particularly in circumstances where the parties freely entered into such agreement. The legislation principally applicable is that of s 95(4)(c)(i) of the Act: There is in fact no contest that the respondent in terminating Schipp's employment on 28 April 2018 provided two letters to him in which they informed of the reasons relied upon in terminating his employment. The first letter (dated 28 April 2018) stated: The second letter (dated 2 May 2018) further stated: The respondent in the correspondence of 28 April 2018 and 2 May 2018 did not reference directly that Schipp's employment had been terminated for "conduct, capacity or performance" but for the inability of Schipp to "fulfil the inherent requirements" of his role. Upon examination of the material before the proceedings, it is of record that Schipp had been absent from the workplace, through illness from 8 June 2017 until his termination on 28 April 2018. Further a psychiatric assessment of Schipp had occurred at the behest of the respondent on 17 February 2018 and that Schipp did not at the time of termination have a certificate from a qualified medical practitioner clearing him to return to his substantive role with the respondent. Schipp's medical condition was not one that had been accepted as work-related and his unfitness to present for work was due to his personal circumstances rather than having arisen in the course of his employment, without any causal connection to the employment. In Birdi v Rail Corporation New South Wales T/A RailCorp[15] it had been established that a long-term medical condition preventing an employee from performing the inherent requirements of the job, constituted a valid reason for termination. The following authorities cited in the course of the proceedings were supportive of "capacity" being related to the ability of an employee to undertake the work associated with their role:[15] Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728 at [24]·Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission[16];·Lion Dairy and Drinks Milk Limited v Norman[17];·CSL Limited T/A CSL Behring v Chris Papaioannou[18];·Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited[19]; ·Elmes v Carpentaria Shire Council[20]; and·Elaina Tito v Pilbara Iron Company (Services) Pty Limited[21].[16] Crozier, in the matter of an application for Writs of Certiorari and Mandamus against the Australian Industrial Relations Commission [2001] FCA 1031[17] Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218[18] CSL Limited T/A CSL Behring v Chris Papaioannou [2018] FWCFB 1005 at 38[19] Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989[20] Elmes v Carpentaria Shire Council [2016] QIRC 118[21] Elaina Tito v Pilbara Iron Company (Services) Pty Limited [2018] FWC 7469 at [72]

Ratio Decidendi

Legal Principle Established

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