Boguslaw Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia

[2016] FWC 6624

[2016] FWC 6624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Boguslaw Bienias
v
Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia
(U2016/3008)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 OCTOBER 2016

Application for relief from unfair dismissal – abandonment of employment – absence from work – Award deeming provisions – termination not at the initiative of the employer.

[1] On 22 June 2016 Mr Bienias lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in which he alleged that he had been unfairly dismissed by Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines Australia (Iplex).

[2] An extension of the time limit specified in s.394 of the FW Act, for the lodgement of Mr Bienias’ application was granted by Deputy President Clancy on 3 August 2016. 1 Mr Bienias’ application was not resolved through the conciliation process and was referred to me for arbitration. It was the subject of a determinative conference, in Perth on 21 September 2016. On 30 August 2016 I issued a decision2 in which I granted permission for Iplex to be represented by a lawyer. Mr Wade, of counsel subsequently represented Iplex. Mr Bienias represented himself with assistance from his wife, Ms Gonciarz.

[3] I have set out the background to Mr Bienias’ application in the following terms.

[4] Mr Bienias worked for Iplex for some 32 years and was, from 1992, a Team Leader. There is no dispute that his role required supervision of up to eight machine operators and the over-sighting of quality assurance functions. Mr Bienias worked on a “four days on four days off” roster system. There is also no dispute that Mr Bienias’ employment was covered by the Manufacturing and Associated Industries Occupations Award 2010 (the Award).

[5] Mr Holmes was appointed as the Iplex Plant Manager in December 2015. From that time Mr Bienias reported to Mr Holmes.

[6] Until June 2016, Mr Bienias’ wife was resident in Canada.

[7] Until 2015, there were no formal records of any performance or disciplinary matters involving Mr Bienias.

[8] On 2 June, 2015 Mr Bienias was given a written warning for failing to comply with the required quality standards on 19 May 2015.

[9] On 21 December 2015 Mr Bienias was stood down from work following a positive alcohol test reading at work. He was provided with a letter detailing the allegation that he had breached the Iplex alcohol policy in this respect. On 18 January 2016, on his return from leave, Mr Holmes advised Mr Bienias that he would be given a written warning. Mr Bienias was given a written warning dated 19 January 2016 regarding this matter.

[10] Mr Bienias was absent from work on his rostered shifts on 19, 20, 21 and 22 January 2016. The parties disagree over the extent to which he notified Iplex of his absences in this respect. On 28 January 2016 Mr Holmes met with Mr Bienias to discuss those absences. Mr Bienias confirmed that he was not sick, but tired and jetlagged and sought to be allowed to take that time as annual leave or long service leave. There is no dispute that Mr Holmes instructed Mr Bienias to notify him of any further absences. Mr Bienias was absent from work on 7 March 2016. He agreed that he did not notify Mr Holmes of that absence because it was a public holiday. On 10 March 2016 Mr Bienias was given a written warning relating to his absenteeism and failure to comply with notification requirements.

[11] On 19 April 2016 Mr Bienias participated in a management meeting where the advice he provided to Mr Holmes about a quality assurance fault resulted in Mr Holmes advising that this issue would be further investigated.

[12] Mr Bienias did not attend work on 2 and 3 May 2016. On 3 May 2016 he advised Mr Fairhurst, the Interim Production Manager, that he could not come into work because he was ill. Mr Bienias attended work on 4 May 2016 but was stood down with pay pending investigation of this absence. Mr Bienias and Mr Holmes do not agree on the conduct of the meeting where Mr Bienias was stood down.

[13] On 5 May 2016 Mr Bienias received a letter from Iplex detailing allegations which included his absence on 2 and 3 May and went to the quality assurance issue identified on 19 April 2016. This letter provided for a meeting to be held on 10 May 2016 to enable Mr Bienias to respond to these allegations. It confirmed that Mr Bienias could have a representative with him or he could respond in writing.

[14] Mr Bienias attended the meeting on 10 May 2016 with a support person and Iplex had three representatives present. Whilst the parties differ over the conduct of that meeting it concluded on the basis that Mr Bienias’ responses would be considered and that there would be a further meeting on the following day. It is common ground that Mr Bienias was distressed in this meeting. In the meeting on 11 May 2016 Mr Bienias was again distressed. The Iplex position is that he was advised that he would be issued with a final written warning and would be placed on a performance improvement plan. Mr Bienias was given the rest of that day off work but was advised that he was expected to attend work again on 12 and 13 May 2016.

[15] Mr Bienias advised that he attended at work on 12 May 2016 but that he did not consider that he was able to work and asked the relief Team Leader, Mr Culver to replace him before leaving work. Mr Bienias did not attend work at Iplex again. He has advised that “The following days I stayed home in bed and was barely aware that phone rang or that I had to eat, take my medication of even care for my life. I was appalled and did not want to talk to anyone”.

[16] Mr Holmes advised that a final written warning, prepared on 11 May 2016 was not provided to Mr Bienias as a consequence of his failure to attend work on 12 and 13 May 2016. Mr Holmes advised that he telephoned Mr Bienias on 13 May 2016 and left a message advising him that he required a medical certificate in support of his absence.

[17] Mr Bienias was next rostered to work on 18 May 2016. He did not attend work on that day, or the following three rostered work days and did not notify Iplex of his absence. On 23 May 2016 Iplex arranged for a letter to be delivered to Mr Bienias. This letter requested that Mr Bienias urgently contact Mr Holmes. Whilst the circumstances of the delivery of this letter are disputed, there is no dispute that it was ultimately delivered to Mr Bienias. Mr Bienias advises that, for reasons relating to his mental health, he did not become aware of this letter until sometime in June.

[18] Iplex contacted the Western Australian Police on 26 May 2016 to ask them to conduct a welfare check on Mr Bienias and was advised that the Police had been able to make contact with him. On 30 May 2016 Iplex prepared and then couriered a letter to Mr Bienias in which it confirmed the termination of his employment effective on 13 May 2016 on the basis that Iplex considered that he had abandoned his employment. This letter provided for payment of five weeks’ notice.

[19] Ms Lisowski is a friend of Mr Bienias’ and Ms Gonciaz. At Ms Gonciaz request, following her inability to make contact with Mr Bienias, Ms Lisowski sought the assistance of the Police to contact Mr Bienias. On 28 May 2016 the Police visited Mr Bienias at his home and arranged for him to be taken to hospital. There was some disagreement over the nature of the consequent assessment of Mr Bienias’ medical condition. Mr Bienias was discharged from hospital on 30 May 2016.

[20] Ms Gonciaz returned to Australia on 11 June 2016. Her evidence was that, on her return, she found the Iplex letters of 23 and 30 May 2016. Ms Gonciaz contacted Mr Holmes on 13 June and met with him on 15 June. Medical certificates relating to Mr Bienias were provided to Iplex. These certificates certified Mr Bienias as being unwell from 28 May 2016. Ms Gonciaz requested that Iplex reverse its decision to terminate Mr Bienias’ employment. On 20 June 2016 Iplex confirmed the dismissal decision.

The submissions

[21] Mr Bienias asserts that he was dismissed by Iplex and that his absences could not be regarded as indicative of abandonment of employment. He asserts that the termination of his employment occurred because of his temporary absence as a result of illness and that there was no valid reason for this employment termination. Mr Bienias asserts that the warnings and allegations put to him were framed in a manner which caused, and exacerbated his distress and resulted in his absence from work, together with the need for him to be receiving on-going medical treatment. Mr Bienias asserts that his 32 years’ service was not properly taken into account by Iplex and that Iplex should reasonably have concluded from his behaviour that he was unable to cope with normal work pressures and was stressed. Mr Bienias asserts that he was treated in a different manner to other employees on his return to work after he tested positive for alcohol at work in December 2015 and with respect to the production quality failing in April 2016. Mr Bienias asserts that Iplex should have developed a performance improvement plan for him at an earlier time and should have provided that plan to him before he stopped attending work. Further, he asserts that an inference should be drawn to the extent that the disciplinary actions taken against him were intended to permit Iplex to dismiss him as an alternative to making him redundant. In terms of the procedural aspects of his dismissal, Mr Bienias asserts that he was not given an opportunity to respond to the proposition that his employment could be terminated and was not advised of the reasons for that dismissal until after it had taken effect. Mr Bienias asserts that, particularly given his mental health, and taking into account his long service with Iplex, the termination of his employment was harsh, unjust and unreasonable.

[22] The Iplex position is that, Mr Bienias was not dismissed at its initiative in accordance with s.385 of the FW Act. Iplex assert that Mr Bienias was covered by the Award and clause 21 of that Award provided for an absence from work of 14 days to constitute a deeming of an abandonment of employment. Iplex relies on various authorities in support of its position in this regard.

[23] In the alternative, Iplex asserts that Mr Bienias’ repeated unexplained absences from work, in the context of clause 21 of the Award represented a valid reason for the termination of his employment. Iplex asserts that Mr Bienias was properly notified of the reason for the termination of his employment and was given opportunities to advise of the reasons for his absences. Iplex assert that Mr Bienias was treated fairly relative to other employees. Iplex asserts that, notwithstanding Mr Bienias’ long employment history, his behaviour in the context of disciplinary action since May 2015, further indicate that the termination of his employment should not be considered to be harsh, unjust or unreasonable.

The Evidence

[24] Whilst I have considered all of the evidence before me, I have summarised the witness evidence in the following terms.

[25] Mr Bienias’ evidence went to his employment history, including issues associated with his failure to comply with sick leave notification requirements which had arisen under the manager prior to Mr Holmes. He advised that the normal practice was to notify the team leader’s office of a sick leave absence but acknowledged that, as of 28 January 2016, Mr Holmes had instructed him to telephone him personally to advise if he was going to be absent from work. 3 His evidence went to his reaction to the warnings and letters of allegation provided to him by Mr Holmes, such that he understood that “his job was on the line”.4 Notwithstanding the instruction to advise Mr Holmes of his absences, Mr Bienias was absent on 7 March 2016 but did not advise Mr Holmes of that absence because he did not want to disturb him on a public holiday. He advised that he was distressed and unable to function normally during May 2016, but that he did not seek help and simply withdrew from any social engagement, including work and his normal daily communication with his wife, who was in Canada. He agreed that he had confirmed to Mr Holmes in a meeting on 18 January 2016 that he had previously used the Iplex Employee Assistance Service (the EAP) and would probably do so again.5 However, his evidence was that he did not utilise the EAP over this time despite it being recommended to him. Following his further absences on 2 and 3 May 2016, Mr Bienias was provided with a letter detailing the allegations made about his failure to properly notify of those absences and report on the quality issue on 19 April 2016. He, together with his support person, then met with Mr Holmes on 10 May 2016. Mr Holmes provided comprehensive notes of that meeting which Mr Bienias agreed were generally accurate.6 He also confirmed that he had no explanation for his failure to notify of his absence in accordance with the instructions given to him. Mr Bienias agreed that, at a follow-up meeting on 11 May 2016, he was told that he would be given a final warning and that he would be placed on a performance improvement plan. Mr Bienias was not required to attend work again until 12 May 2016. He also agreed that, apart from a brief attendance at work on 12 May 2016 when he handed his keys to another employee, he did not again attend for work and was not given either the final written warning, or the proposed performance improvement plan. Mr Bienias advised that he did not advise Mr Holmes of his absence on 12 May 2016 because he considered that his brief attendance at work obviated the need to do so.7 He advised that his interest in life generally deteriorated over this time and that this explained his failure to check his mail, and to respond to telephone calls and door knocks. His evidence was that he felt bullied by the warning and disciplinary process.8 This evidence was in the following terms:

Mr Wade: You haven’t produced medical certificates Mr Bienias in respect of the period 13 May to 27 May have you?

Mr Bienias: No

Mr Wade: In that period you missed a further two shifts, correct?

Mr Bienias: Yes

Mr Wade: I should say two series of shifts.

Mr Bienias: It was the 13^th then 18, 19, 20, 21 then 26 and 27. The 28^th I was taken to hospital….. so it’s a shift and a half.

Mr Wade: So you missed two series of shifts.

Mr Bienias: 7 rostered days on.

Mr Wade: You didn’t in respect to any of those days contact Mr Holmes as you knew you should do, correct?

Mr Bienias: No I didn’t contact, no.

Mr Wade: You never provided an explanation Mr Bienias for why you didn’t do that, are you able to provide one now?

Mr Bienias: I was in such a state of mind that I just didn’t care. As I wrote in my statement, I just thought I needed some more rest, I was devastated by all this. Four months of warnings and being reminded every time that I was going to be jeopardising my job every time, you know, I stopped caring.

Mr Wade: Mr Bienias, you accepted in all of those meetings with Mr Holmes that you were at fault and in some of them you begged for forgiveness and you begged for a further chance. …. and Mr Holmes gave you that chance.

Mr Bienias: I didn’t beg for forgiveness I asked for another chance.

Mr Wade: And Mr Holmes afforded you that chance.

Mr Bienias: Yes.

Mr Wade: So Mr Bienias, I must put it to you, that knowing you had a final warning you consciously decided not to do what Mr Holmes asked you to do, which was to call him and explain your absence.

Mr Bienias: On my days off, I didn’t think that I had to call him, until I can to the next rostered on …. but I was in such a state I stopped caring.

Mr Wade: Do you have any other explanation you want to give Mr Bienias as to why you didn’t do what Mr Holmes asked you to do, which was to phone him?

Mr Bienias: Well as you can see from the diagnosis from the hospital I was in depression. I don’t know, I can’t explain it.

Mr Wade: You were living your life Mr Bienais, you were eating you were no doubt shopping ….

Mr Bienias: No I was not, I lost 10 kilos of weight. 9

[26] Mr Bienias confirmed that he was rostered for work on 13, 18, 19, 20, 21, 26 and 27 May 2016 but did not advise or seek to advise, Mr Holmes or Iplex of his absence. Mr Bienias advised that he did not check his letterbox between 12 and 30 May 2016 and that he was not aware of the termination of his employment until advised of this by his wife on 11 June 2016. He advised that he could not receive any telephone messages as his phone mailbox was full of messages from his wife.

[27] Mr Bienias’ evidence about being admitted to hospital on 30 May 2016 was limited. However, he was aware that he was told he was depressed. He was also aware that, on his release from hospital on 30 May 2016, he was given a medical certificate. He did not seek to then contact Iplex or provide that certificate to Iplex. On 1 June 2016 his evidence was that he felt well enough to walk to his treating General Practitioner and that he asked for a further Doctor’s Certificate, but that he did not provide this to Iplex until some days later. Mr Bienias was unable to advise why he did not telephone Iplex at that time. 10 His evidence was that he remained under the care of his General Practitioner. He was unable to advise me of a psychological health diagnosis that extended beyond the depression that affected him in May 2016. His evidence was that he remained medically certified as unfit for work until at least the end of September 2016.

[28] Mr Bienias’ evidence was that he had not sought alternative work since the termination of his employment because of his mental health.

[29] Ms Gonciaz’ evidence went to confirm her observations that Mr Bienias appeared to be increasingly withdrawn and non-communicative from the end of 2015. She advised that he sought to explain this on the basis that he was tired. His withdrawal then extended to reticence to talk, and, by mid-May, the absence of any response to her phone calls from Canada.

[30] Ms Gonciaz advised that, as she was alarmed about Mr Bienias’ wellbeing, she asked a friend, Ms Liswoski, to check on him. When Ms Gonciaz was advised that he had been admitted to hospital, she arranged to return to Australia. On her return, she found unopened letters from Iplex, including the termination of employment advice. She then contacted Mr Holmes and met with him in an effort to reverse that employment termination decision.

[31] Ms Liswoski’s evidence went to the steps she took from mid May 2016 to contact Mr Bienias which ultimately included contacting the Police, and his subsequent admission to hospital on 30 May 2016. Ms Liswoski’s evidence was that she visited Mr Bienias on 29 and 30 May 2016 and, on one of those days, telephoned a Ms Baker from Iplex to report that Mr Bienias was in hospital and was suffering from depression. She advised Ms Baker that he had been depressed for some time. 11 Ms Liswoski attempted to dissuade the hospital from discharging Mr Bienias on 30 May 2016 because of her concerns about his health.

[32] Mr Holmes is the Iplex Operations Manager. His evidence went to his appointment to Iplex in December 2015 and to the extent to which Mr Bienias reported directly to him. He detailed his concerns over Mr Bienias’ attendance and to the extent to which he properly reported on a quality management issue in April 2016.

[33] Mr Holmes detailed the actions he took relative to each of the concerns he had with Mr Bienias, which included his documentation of meetings, ensuring that Mr Bienias was aware that he could have a support person present and his invitations to Mr Bienias to utilise the Iplex Employee Assistance Programme.

[34] Mr Holmes’ evidence was that, particularly in the meetings which he had with Mr Bienias in May, Mr Bienias was upset, and that, in addition to confirming to Mr Bienias that he could access the EAP, he offered him transport home and provided him with further time off work. He understood that Mr Bienias was distressed at what he saw as the threat of termination of his employment.

[35] Mr Holmes’ evidence went to the steps he took when Mr Bienias did not attend for work on 13 May and for his rostered shifts from 18 May. These extended to telephone messages, the written advice 12 of 23 May 2016 which he arranged to be delivered to Mr Bienias’ home, his subsequent instructions to the courier in this respect, and his involvement in the decision to ask the police to check on Mr Bienias. Mr Holmes confirmed that he was advised that the police had spoken to Mr Bienias. Mr Holmes’ evidence went to his consultation with Iplex human resources personnel in the decision-making process which concluded that Iplex considered that Mr Bienias had abandoned his employment and to the correspondence sent on 30 May 2016 to confirm that. Mr Holmes confirmed that, at the time that he signed that letter, he was not aware that Mr Bienias was in hospital but that later that day he was made aware that Mr Bienias was in hospital. He advised that, sometime later, Ms Baker confirmed this, but he could not recall exactly when that confirmation was advised to him.

[36] Mr Holmes confirmed that he met with Ms Gonciaz on 15 June 2016 and subsequently consulted with other Iplex personnel to decide whether Iplex should reinstate Mr Bienias. He explained that the decision not to reinstate Mr Bienias reflected concern about his failure to properly notify Iplex of his attendance issues in May 2016.

Findings

[37] Before setting out my conclusions relative to the provisions of the FW Act, I have recorded the conclusions I have reached about the facts. In doing so I note that the nature and extent of the evidence provided to me by both parties has complicated this. Mr Bienias did not provide any specialist medical evidence which may have assisted in my conclusions about his mental health over the period in question. Further, and given Mr Bienias’ submission that Iplex should have noticed and acted on his mental distress at an earlier time, it is surprising that Mr Bienias did not call his support person in the discussions which occurred in early May 2016, to give evidence about his behaviour. I have not drawn any adverse inference in these respects as it is very clear that Mr Bienias did not have access to legal expertise in preparing his case. Instead, I have simply based my conclusions on the evidence before me. For Iplex’s part, it is clear that the termination of employment letter was finalised and sent on 30 May 2016, on the same day that Ms Baker of Iplex was advised that Mr Bienias was in hospital. Ms Baker was present at the determinative conference on 21 September but was not called to give evidence about how and when that information was disseminated within Iplex. Finally, whilst assertions have been made in this matter about redundancies that could have impacted on Mr Bienias, had he not been dismissed, there is no significant evidence before me in this respect.

[38] I have concluded that, prior to 2016, concerns about Mr Bienias’ notification of sick leave absences had been raised with him such that he was clearly aware of the general requirement to notify of an absence.

[39] I have concluded that, because of the work he undertook, Mr Bienias was covered by the Award, and that he was aware that his employment was also covered by an employment contract. 13 This contract specified sick leave notification requirements in a manner consistent with both the Award and normal workplace relations practices. Additionally, the Iplex Employees Handbook14 confirmed notification requirements.

[40] Mr Bienias’ positive alcohol test reading in December 2015 followed a random test. The provisions of the Employee Handbook state:

“Alcohol and Drugs

• You must not use, possess, distribute or sell any type of drug on company premises at any time.



• Unless a social function is authorised by a senior site Manager, you must not consume, possess, distribute or sell alcohol on company premises, either during or after normal working hours.



• You must not attend work if impaired by drugs or alcohol. If you report for work in a condition that gives your Team Leader/Manager reasonable grounds to believe that you are under the influence of drugs and/or alcohol, and that you are unable to perform your duties properly or with due care to yourself or to others, you will be sent home on a first offence.



• A second occurrence will be dealt with as outlined under ‘Performance Management’ above, and may lead to dismissal.



• If you are prescribed medication that may affect your work performance, you must tell your Team Leader/Manager before starting work. The Company may seek advice in specific instances from its nominated medical practitioner. Alternative duties may be arranged subject to medical advice.



• Any employee who conducts business on behalf of Iplex on or away from company premises should note that Workers Compensation claims resulting from any incident subsequent to, or involving consumption of drugs or alcohol are likely to be declined.” 15

[41] Notwithstanding this, I have concluded that Iplex had a legitimate basis upon which to be concerned about a positive alcohol reading late in Mr Bienias’ shift and that it was entitled to address this issue through a written warning. I do not consider that the inclusion, in this warning, 16 of a very common caution that further behaviours of that nature may result in further disciplinary action, up to and including termination of employment, was anything other than a fair caution. It did not and could not reasonably be taken as a threat of imminent dismissal but, rather, reflected the disciplinary process referenced in the Iplex policies.

[42] Mr Bienias was drug and alcohol tested on his return to work after this first incident. That was a targeted test but I consider that Iplex was clearly entitled to check that Mr Bienias was not again affected by alcohol. I do not consider that this second test, which provided a negative result, reflected any unfair treatment toward Mr Bienias.

[43] Mr Bienias did not provide advice of his absences in January 2016 in a manner consistent with the Iplex requirements. He may well have been tired and jet-lagged but he knew the leave notification requirements and did not follow these requirements. Notwithstanding this, on 28 January Mr Bienias was clearly told of the requirement that he expressly notify Mr Holmes of any future absences. 17 He did not follow that instruction, which was a lawful and reasonable request, when he was absent again on 7 March 2016. In this context there was a clear basis for the warning given to him on 10 March 2016.18 Again, the general caution about repeated conduct of that nature giving rise to further disciplinary action can only be regarded as consistent with the purpose of a warning and could not reasonably be taken as a threat of imminent dismissal.

[44] Mr Bienias was a Team Leader. In that context I have concluded that Iplex was entitled to investigate why he elected not to report a quality management failing in his work unit at the production meeting on 19 April 2016. Although he was told this matter would be investigated, the delay in further advice about that investigation indicates that the matter was not regarded, at that time, as particularly significant.

[45] Mr Bienias was again absent on 2 and 3 May 2016 and did not notify Mr Holmes of his absence in accordance with the instructions given to him. This matter was fairly investigated in meetings on 4 and 5 May 2016. Mr Bienias did not challenge the accuracy of Mr Holmes’ notes of those meetings and I have concluded that they demonstrate that the meetings were conducted fairly and equitably. I have later addressed the extent to which Mr Bienias’ behaviours at those meetings should have prompted different actions on the part of Iplex.

[46] At the meeting on 4 May 2016 Mr Bienias was clearly told that he could access the EAP. The meeting notes indicate an exchange along the following lines:

“JH – Bogdan, as always, the EAP service is available should you need talk to someone. As you kiow you can do so knowing the service is confidential and available anytime. I strongly urge you to contact hem if you feel the need to talk about any of your concerns. (sic)

BB – Thank you Jason, (stood up and put hand out to shake hands with me)”

[47] Mr Bienias had the option of utilising that EAP. I have concluded that he elected not to do so. He also elected not to inform Mr Holmes of any reasons for his distress at that time.

[48] I have concluded that the formal allegations put to Mr Bienias on 5 May 2016 fairly reflected the matters that were put to Mr Bienias at the following meetings on 10 and 11 May 2016. Further, that the Iplex conclusion advised to Mr Bienias on 11 May 2016, that he would be given a final warning and would be placed on a performance improvement plan reflected a normal disciplinary process directed at preserving his employment, provided that he modified his behaviours. Whilst that final warning was prepared, it was not given to Mr Bienias because he did not, in practical terms, attend work again.

[49] In overall terms, I have concluded that there was no pattern of behaviour, on the part of Iplex which was intended or had the probable consequence of bringing Mr Bienias’ employment to an end.

[50] Mr Bienias briefly attended work on 12 May 2016. He handed over his keys to another employee and then left. At that time he was aware that he was to be placed on a final warning but again did not notify of his absence in accordance with the clear instructions given to him. As I have already observed, he was absent from the following seven rostered shifts.

[51] I have concluded that, as of 12 May 2016, Mr Bienias was capable of sufficiently clear thought so as to know that he had to bring in keys. I have concluded that, at least at that time he was also aware of the notification requirements but decided to ignore these.

[52] I have accepted Mr Bienias’ evidence about his mental health to the extent that I have concluded that at some time after 12 May 2016 and up to the time he was admitted to hospital, he was not able to think or act clearly, he did not respond to messages or visitors and did not check his letterbox.

[53] The hospital based assessment that, from 28 May 2016, Mr Bienias was suffering from depression is clear. However, that assessment does not establish what Mr Bienias could or could not do, or his mental capabilities. Mr Bienias had a medical certificate on 30 May which he could have bought to the attention of Iplex and, by 1 June 2016, he was able to function sufficiently well enough to ask his doctor for a further certificate which, again, he did not provide to Iplex.

[54] I have concluded that the evidence of Ms Liswoski confirms that, on 30 May 2016, Iplex was made aware that Mr Bienias was in hospital. I have concluded that this information was not conveyed to Mr Holmes before he signed the termination of employment letter.

[55] On the facts before me, I am not satisfied that there is any evidence that indicates that the disciplinary actions taken against Mr Bienias, or the termination letter of 30 May 2016, were related to any planned reduction in the number of Iplex team leaders or were directed toward avoiding any consequent redundancy payment obligations.

[56] Finally, the evidence before me indicates that, since 30 May 2016, Mr Bienias has been unable to work and that he remains medically certified as unable to work until, at least the end of September 2016.

Was Mr Bienias dismissed?

[57] The initial issue to be determined in this matter goes to whether Mr Bienias was dismissed by Iplex or whether the termination of his employment was an event which he precipitated by virtue of his unexplained absences.

[58] Section 386 of the FW Act states:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[59] Clause 21 of the Award 19 states:

“21. Abandonment of employment

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 21—Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.”

[60] Iplex contend that Mr Bienias’ failure to notify of his absence from work met the circumstance described in the Award so that I should conclude that Mr Bienias’ employment was not terminated by Iplex.

[61] Iplex agreed that various decisions of the Commission had demonstrated differing approaches to deeming provisions of this nature. I have adopted an approach fundamentally based on the following authorities.

[62] I agree with the following observation made by Deputy President Asbury in Sharpe v MCG Group Pty Ltd: 20

“[29] The concept of abandonment of employment is not new to employment law. It is a term that is often loosely used, or used without consideration of the effect of the abandonment upon the employment relationship or the contract of employment. Generally, abandonment arises in circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent. There are cases where it has been held that the conduct of the employee in abandoning his or her employment has brought the employment to an end so that there has been no termination at the initiative of the employer. In contrast, there are cases where it has been held that abandonment on the part of an employee constitutes repudiation of the employment contract, and that the election of the employer to accept the repudiation is the action which brought about the termination of employment. There are also cases where the focus has been on whether or not conduct on the part of an employee constituted abandonment of employment, and because of the findings in relation to this point, there was no requirement to consider whether the abandonment per se brought about the termination of the employment.

[30] As Professor Stewart has observed:

“It also appears that a contract may be terminated by abandonment. This occurs where an employee walks off the job or fails to return from a period of authorised leave, in circumstances that make it reasonably apparent they no longer intend to be employed. This might well be analysed as repudiation by the employee, so that the contract is actually terminated by the employer when accepting that the employment has ended. But there are decisions to the effect that termination by abandonment does not constitute a ‘dismissal’ or ‘termination’ by the employer.”

[31] At common law it is well established that the concepts of termination of employment and the discharge of a contract of employment are different, and that it does not follow that because a wrongful dismissal is effective to bring the employment relationship to an end, it also discharges the contract of employment. There is also authority for the proposition abandonment of employment is conduct that constitutes repudiation of the contract of employment, and that acceptance by an employer of the repudiation brings the employment relationship to an end, rather than the abandonment itself.”

(references removed)

[63] In the Full Bench decision in Searle v Moly Mines Limited 21 (Moly Mines) the distinction between the termination of an employment relationship and the termination of the contract of employment was considered. The Full Bench stated:

“[21] It is apparent from the last sentence of the passage that the Commission was considering the matter in the context of an allegation that an employee’s resignation was a constructive termination by the employer. That sentence apart, the statement of principle is the one we shall apply namely: did the employer take some action which was intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end.

[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd:

“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):

“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy's Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”

And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:

“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.” ”

[23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.

[24] We turn now to the circumstances of this case. In doing so we note that the question is whether the appellant’s employment was terminated at the respondent’s initiative. It should be clear that no issue arises at this stage as to the merits of the appellant’s case. It is therefore not relevant to ask whether particular conduct was justified, reasonable or appropriate except to the extent that the answer may shed light on the issue of whether the appellant’s employment was terminated at the respondent’s initiative.”

[64] If the approach in Moly Mines is applied to Mr Bienias’ circumstances, the issue becomes one of whether Iplex terminated Mr Bienias’ employment by sending him the letter of 30 May 2016. That letter stated:

“Dear Boguslaw,

Re: ABSENCE FROM WORK

You have been absent from work since 13 May 2016 without our consent and without notification.

We have tried to contact you in writing on 23 May 2016 (via courier), 26 May 2016 (via express post), attempted to call your phone several times, and also arranged for a welfare check via the Western Australian Police on Thursday 26 May 2016. To date have not had a response from you.

As such, we have determined that you have abandoned your employment with Iplex Pipelines and, consequently, your employment with the company is terminated with effect on 13 May 2016, being the last shift you worked for the company.

All final monies, including your 5 weeks’ notice period, will be paid to you through our payroll department on receipt of all tools and equipment, keys or any other company property in your possession.

Please contact me on xxxx xxx xxx to arrange the return of the above items.

Jason Holmes
Plant Manager
Iplex Pipelines Australia Pty Limited” 22

[65] If that letter is to be taken as advice of an employment termination at the initiative of Iplex, Mr Bienias’ application then needs to be considered on its merits. Alternatively, if the letter of 30 May 2016 simply confirms that Mr Bienias had abandoned his employment, then he was not dismissed, and the application can be taken no further.

[66] In Moly Mines, the Full Bench remarked on the approach which is required to determine an issue of jurisdiction of this nature. The Full Bench stated:

“[38] … Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.

[39] We have already indicated that the statutory test relates to the termination of the employment relationship. The application of the common law principles relating to termination of the contract of employment may not yield the correct answer in any given case. It can be seen from the passage we have quoted that the Commissioner’s analysis drew heavily on those principles. Those principles may not be irrelevant to the inquiry, but in this case they proved to be a distraction from the question posed by the statute. 23

[67] It is appropriate that I note that in Moly Mines the Full Bench was considering an employment relationship which involved an employment contract which addressed the concept of abandonment of employment in quite different terms to the Award covering Mr Bienias.

[68] Indeed, I think it quite likely that some of the divergences in decisions dealing with abandonment of employment reflect the very different manner of treatment of this concept in employment contracts, enterprise agreements, and Awards. Some guidance in relation to this issue can be found in another Full Bench decision, Gauci v GlaxoSmithKline Australia Pty Ltd. 24 In that matter the Full Bench considered whether an absence from work for a continuous period of three working days without the employer’s consent or without notification in the context of an enterprise agreement provision set out in the following terms:

“Abandonment of Employment

(i) The absence of an employee from work for a continuous period and exceeding 3 working days without the consent of the employer and without notification to management shall be prima facie evidence that the employee has abandoned his or her employment. Termination of employment by abandonment in accordance with this sub clause shall operate from the date of the last attendance at work in accordance with the considerations at clause 8(f)(iii).” 25

[69] In that matter, the Full Bench agreed with the first instance decision, to the effect that the employee had not been absent from work in a manner which met the requirements of that particular clause. The Full Bench then continued, to state:

“[19] There is an additional contention advanced by the respondent’s counsel which requires comment. It was argued that even if the respondent had abandoned his employment that would not constitute termination. It would constitute repudiation of the contract. Because GSK had elected to treat the repudiation as terminating the contract the employment was terminated at GSK’s initiative. This argument raises an issue of potential significance in any case involving conduct by an employee which constitutes repudiation of the contract of employment. It is not necessary to decide the issue in this case, however, because we have not disturbed the finding that there was no abandonment and therefore the question of repudiation does not arise. But we observe that the argument may blur the distinction between termination of employment and termination of the contract of employment. The question posed by the statute is whether the employment was terminated at the initiative of the employer. An analysis based on contractual notions of repudiation and acceptance may not always correspond with the statutory concept.”

[70] In this context, it then becomes necessary to consider the specific provisions of clause 21 of the Award so as to determine their effect. In this regard, I have applied the general principles governing the interpretation of industrial instruments. Whilst these principles have been addressed in numerous circumstances, 26 I have applied the approach articulated by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union27 in the following terms:

“53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to “ … the entire document of which it is a part or to other documents with which there is an association”. It may also include “ … ideas that gave rise to an expression in a document from which it has been taken” — Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).”

[71] Further, in Kucks v CSR Ltd, Madwick J stated:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 28

[72] Clause 21 of the Award is a provision which is replicated in only a very small number of Awards. In this sense it is rare. Most industrial instruments either do not address the issue of abandonment of employment, or do so in a less prescriptive fashion. The current provision has remained largely unchanged since it was inserted into a predecessor of the Award in 1970.

[73] Clause 21.1 of the Award must be read on the basis that an absence, without the consent of the employer and without notification to the employer, for a continuous period exceeding three working days, creates a presumption that the employee has abandoned his or her employment and that there is, in effect, an obligation on that employee to establish that this is not the case. In terms of the concept of repudiation of the contract of employment such as was the case in the circumstances addressed in Moly Mines and Gauci, if an employee’s absence met the requirements of clause 21.1, the provisions of this clause would appear to create an obligation on the employee to establish whether that prima facie case was appropriate in a given circumstance.

[74] However, Clause 21.2 takes this concept a step further. The reference to 14 days must refer to 14 calendar days rather than “working days”. That much is clear from the different expressions used in sub-clauses 21.1 and 21.2. The concept of “the employee is deemed” must be construed such that it equates with the concepts of “judged”, or “regarded” (The Macquarie Dictionary). I have adopted the position that this provision must be read in the context that it specifies that a failure to notify the employer, or obtain the employer’s consent to an absence within 14 days of the employee’s last attendance at work means that the employee is regarded or judged as having abandoned their employment. That abandonment must be regarded as an employment termination on the basis that it ends the employment relationship. Clause 21.3 establishes further certainty associated with this “deeming” provision in that it provides a date upon which that employment termination takes effect, being the date of the last attendance at work, or the last day’s absence with respect to which consent was given.

[75] This approach potentially gives rise to obvious inequities. For instance, if an employee is clearly incapacitated such that they are unable to communicate with the employer for more than 14 days, clause 21.2 appears to regard the employee as, nevertheless, having abandoned his or her employment. I have considered whether that type of iniquity means that the Award clause 21.2 should be regarded as a discretionary provision which does not operate until the employer accepts the repudiation of the contract. I am unable to apply this approach. The Award represents mandatory minimum employment provisions which apply to both employers and employees. Clause 21 is within Part 3, Types of Employment and Termination of Employment. Other clauses within this Part set out obligatory provisions relating to, for instance, full-time and casual employment definitions, termination of employment and redundancy obligations. Like the other clauses in this Part of the Award, clause 21.2 cannot be regarded as some form of discretionary provision. It is absolute in its terms. Indeed, if this provision is capable of being regarded as a discretionary provision, then so too must other provisions which are clearly prescriptive.

[76] That said, it must be open to an employer, not to regard an employee who has been absent, without notice for more than 14 days to have abandoned their employment. In that situation, it may well be that there is some form of new, or renewed employment contract. Because that circumstance has not arisen here, I have not further addressed it.

[77] Notwithstanding my significant reservations about the potential inequities created by this strict approach to the application of clause 21 of the Award, I am unable to apply that clause in any other manner.

[78] Consequently, Mr Bienias’ failure to give notification to Iplex of his absence for more than 14 days, means that he must be judged to have abandoned his employment. The letter of 30 May 2016 must then be taken to simply acknowledge that employment abandonment. I have considered the extent to which the payment of five weeks’ notice could be construed as an indication that the employment termination was at the initiative of Iplex, if only in the sense that it confirmed the employer’s acceptance of that repudiation. I have concluded that the letter cannot be construed in that context, because, to do so, would again introduce an element of discretion in the interpretation of clause 21.2.

[79] I have considered the extent to which Mr Bienias’ “Individual Terms And Conditions Of Employment”, 29 which applied from 1 October 2015, supported the provisions of the Award. I do not think that those provisions establish different employment rights that override the provisions of the Award clause 21.

[80] Finally, I note that the issue here does not relate to whether or not it was fair for Iplex not to reinstate Mr Bienias after Ms Gonsciarz requested that. There is simply no jurisdiction relative to that issue.

Conclusion

[81] My conclusions about the operation of clause 21 of the Award mean that I do not consider that Mr Bienias was dismissed at the initiative of Iplex. Had he provided advice, or even a medical certificate, during that critical 14 day period, a different conclusion may have been invited. Mr Bienias’ circumstances are unfortunate but I am unable to regard these circumstances as meeting the definition of dismissed in s.386. Consequently, the termination of his employment cannot be regarded as unfair and the application must be dismissed accordingly. An Order (PR585426) to this effect will be issued.

Appearances:

B Bienias (and A Gonciarz) on his own behalf.

R Wade counsel for the Respondent.

Hearing details:

2016.

Perth:

September 21.

 1   [2016] FWC 5357

 2   [2016] FWC 6166

 3   Transcript Audio, 21 September 2016, 11.24am

 4   Transcript Audio, 21 September 2016, 11.25am

 5   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 189

 6   Transcript Audio, 21 September 2016, 11.46am

 7   Transcript Audio, 21 September 2016, 11.50am

 8   Transcript Audio, 21 September 2016, 12.06pm

 9   Transcript Audio, 21 September 2016, 11:51:30am

 10   Transcript Audio, 21 September 2016, 12.05pm

 11   Transcript Audio, 21 September 2016, 12.15pm

 12   Exhibit I2, Attachment JH-15

 13   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 1-14

 14   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 147-183

 15   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 163-164

 16   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 201-203

 17   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 191

 18   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 192

 19   Manufacturing and Associated Industries and Occupations Award 2010

 20   [2010] FWA 2357

 21   [2008] AIRC 1088

 22   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 212

 23   [2008] AIRCFB 1008, paras [38] and [39]

 24   [2008] AIRC 439

 25   [2008] AIRC 439, from para [8]

 26   see AMIEU v Golden Cockerel[2014] FWCFB 7447, paras [19]-[41]

 27 [2006] 153 IR 426

 28 [1996] 66 IR 182

 29   Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 1-14

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