Brian Jamison v Techniques Management Pty Ltd
[2023] FWC 3408
•21 DECEMBER 2023
| [2023] FWC 3408 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Brian Jamison
v
TECHNIQUES Management Pty Ltd
(C2023/6346)
| COMMISSIONER CIRKOVIC | MELBOURNE, 21 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection that Applicant not dismissed – determination that employment terminated on employer’s initiative – jurisdictional objection dismissed.
Introduction
This decision sets out the reasons for my decision delivered ex tempore and recorded in transcript on 19 December 2023.
On 16 October 2023, Mr Brian Jamison (Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The Respondent to the dispute is TECHNIQUES Management Pty Ltd (Respondent).
The Applicant contends that the Respondent contravened one or more of the general protections provisions in dismissing him from his employment. The Respondent raised a jurisdictional objection to the application in that it did not dismiss the Applicant.
The Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections.[1]
The Applicant sought permission under s.596 of the Act to be legally represented. Having weighed the considerations in s.596 of the Act and the circumstances before me, I granted permission to the Applicant to be represented.
On 19 December 2023, I conducted a hearing in relation to the question of whether the Applicant was dismissed by the Respondent. Mr Jamison gave evidence in support of his contention that he was dismissed.
Dismissal
The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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.”
General principles
The expression termination “on the employer’s initiative” in s.386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]
In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s.386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4]
Where the conduct of an employee amounts to a renunciation of the contract of employment, it is the conduct of the employee that terminates the employment relationship.[5] Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.[6] The difference between renunciation and repudiation was explained by Gleeson CJ, Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited[7] as follows (references omitted):
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it… Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term … manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.”[8]
Abandonment of employment is an example of renunciation. In Abandonment of Employment, a Full Bench of the Commission considered the meaning of the expression “Abandonment of Employment”:
“Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.” [9]
Relevant facts re alleged dismissal
The following facts are largely not in dispute:
On 29 January 2019, the Applicant commenced casual employment with the Respondent in the position of Blending Labourer.
On 31 October 2019, the Applicant commenced permanent full-time employment with the Respondent.
On 16 February 2023, the Applicant states he sustained a back injury while performing his duties.
Between 16 February 2023 and 25 September 2023, the Applicant was absent from work for several periods of paid and unpaid leave.
On or about 4 July 2023, the Applicant was asked by the Respondent to take annual leave and submitted a leave application form for annual leave from 4 July 2023 – 11 August 2023.
On 15 August 2023, the Applicant requested an extension of his annual leave until 18 August 2023.
Between 18 and 21 August 2023, a series of text messages were exchanged between the Applicant and Mr Martin, Director of the Respondent, regarding the Applicant obtaining a certificate to return to work on normal duties.
On 22 August 2023, the Applicant submits he returned to work and provided a medical certificate from his General Practitioner, Dr Haque dated 21 August 2023 to Mr Kingston, Production Manager of the Respondent. The medical certificate stated that it “is advisable that he avoids constant lifting job for next one week and will review how he feels”.
The Applicant states Mr Kingston told him to wait while he contacted Mr Martin and after Mr Kingston spoke to Mr Martin on the phone, he told the Applicant that there was no work for him to perform on modified duties and to stay on annual leave.
The Applicant states he then called Mr Martin who told him to continue taking annual leave as there was no work for him on modified duties.
Between 22 and 30 August 2023 the Applicant was absent from work on annual leave in accordance with the Respondent’s direction.
On 1 September 2023, the Applicant states he received a telephone call from Mr Martin while he was in an appointment with his general practitioner. The Applicant states he stepped out of the appointment to take the call and told Mr Martin that he was ready to return to work on full duties. The Applicant states Mr Martin told him that things were “quiet” and to call him again on the following Friday.
On 4 and 5 September 2023, the Applicant was absent from work on paid personal leave. The Applicant submitted a medical certificate from his general practitioner to Mr Wessels, Accountant of the Respondent, stating that he would be unfit for training/work from 4 September 2023 to 5 September 2023 inclusive.
On 8 September 2023, the Applicant called Mr Martin and told him that he was ready to return to work on full duties and wanted to return to work. The Applicant states Mr Martin told him that things were quiet and to call him again on the following Friday.
On 13 September 2023 at 11.04am, the Applicant sent an email to Mr Martin which is reproduced below:
“Dear Matthew,
I have spoken to Fair Work Australia. They advised me to state my concerns in writing.
They stated that I am a Full Time Employee which means that I am entitled to 38 Hours of work a week.
I have endeavoured to return to work but you have told me that there is no work.
I want to return to work on Monday 18/09/2023.
Also I put in for some personal/sick leave that was not paid to me even though I have personal/sick leave available. Can you please pay out my personal leave for these 2 days for the 04/09/2023 and 05/09/2023. I have also resent the relevant Medical Certificate covering these 2 days in this email.
Can you please provide a written response to these 2 concerns that I need addressed by Friday 15/09/2023.”
On 13 September 2023 at 11.44am, Mr Martin sent an email to the Applicant which is reproduced below:
“Dear Brian,
As indicated to you on several occasions we are extremely quite and as you have not provided the following, we do not know your current capacity:
- Your ability to work 38 hours normally without restriction ?, you stated you would get us a letter from your chiropractic person and we have not received it yet.
As you have failed 2 random drug tests at work, and you have stated it is medical and you would get a letter from the prescribing doctor ,again this is not received yet.
Brain you absentee over the years has created great hardship for the business and you reliability is in question, again this needs addressing.
Brian, you have sent a medical certificate for a noted period, and you did not call into work advising of such and if you are unwell are you now better ?.
Lots of unanswered questions Brain that need to be fully addressed prior to retuning to work, so please get advice and answers to this so you can recommence your 38 a week work, without absentee and on normal duties.
Await your reply as son as practical so the above is addressed.
Kind regards”
On 13 September 2023 at 3.12pm, the Applicant sent an email to Mr Martin which is reproduced below:
“Dear Matthew,
It was my understanding the only issue you had was whether I was able to return to normal duties. As per our conversations by phone and text I informed you that I was already to return to work.
I have a medical letter stating that I can return to full duties but you have repeatedly told me that it is quiet and there is no work. I will include the medical letter with this correspondence.
I will answer your questions but this is the first time you have made me aware of other issues.
I have already supplied a letter from my Doctor saying it was prescribed medication.
I gave you a letter from the Chiropractor on about 04/07/2023.
As you have not allowed me to return to work, I was not aware that I had to call in. The days that I attended the doctor were for medical letters regarding my return to work.
As to the absenteeism this is the first time you have communicated this to me. I have not been at work these past months because you told me to take annual leave.
I expect this answers your questions.
As stated previously I wish to return to work on Monday”
On 14 September 2023 at 9.37am, Mr Martin sent an email to the Applicant which is reproduced below:
“Dear Brian,
Appreciate your return email, but unfortunately there is still answers we are requiring from yourself that have been requested from you before.These are:
A report from your Chiropractor as you stated he was managing your lifting rehabilitation and getting you in a position to return to work and you indicated you would get a clearance from him re your ability to lift, this has not been supplied yet.
We did ask for a letter from the hospital outlining your stay there and treatment for the infection but as you stated it was personal and you wouldn’t supply it. Thus, why you have been off from work for some time.
Again, as you have failed 2 random drug tests at work and you gave an explanation it was the opioids in your medication from your doctor, and to give you the support we asked you some time ago for a letter from you doctor outlining such so we can understand the prescribed medication you are on. Again, we have not received this yet.
We have briefly discussed the absenteeism with you and have it all documented if you wish to see it as it is above a level of acceptance and we need the commitment from you this will cease, unless it is urgent.
Brian, you have sent us a medical certificate this morning to say only this week you can return to normal duties, so thank you and once the others are supplied let’s look at a return.
Brain, you sent us a medical certificate for a noted period and did not call into work advising of such and if you are unwell are you now better ?.
Can you advise if you return to normal duties will these exacerbate your normal work in room 5/bulk ups/forklift abilities ?.
Look forward to a resolution on all these matters asap so we can schedule a return to work.
Kind regards,”
On 25 September 2023 at 2.26pm, the Applicant received an email from the Respondent which attached a letter titled ‘Abandonment of Employment’. The letter is reproduced below:
“Dear Brian,
RE: ABANDONMENT OF EMPLOYMENTYou have now been absent for considerable days without company approval and without notification. We have had several discussions with you and were waiting to receive medical documents from you. We write to advise you that you have breached your employment contact (sic) and have abandoned your employment.
This length of absence contravenes your employment contract and this will result in termination of your employment.
Kind regards,”
Did the Applicant abandon his employment?
Abandonment of employment falls within the doctrine of repudiation but it is a discrete type of repudiation. Consistent with the authorities cited above, for abandonment of employment to be found to have occurred there are a number of elements which have to be present.
The Applicant disputes the Respondent’s assertion that he abandoned his employment and submits in support that:
a)He made inquiries about returning to work and/or attempted to return to work on 4 July 2023, 18 August 2023, 21 August 2023, 22 August 2023, 1 September 2023, 8 September 2023, and 13 September 2023.
b)On 4 July 2023, 22 August 2023, 1 September 2023, and 8 September 2023, he was directed by Mr Martin and/or Mr Kingston to take and/or remain on paid (then unpaid) annual leave, meaning that the Applicant was not absent from work without explanation; and
c)On 13 September 2023 at 11.04am and 3.12pm, he sent two emails to Mr Martin both stating, among other things, that he wished to return to work full-time on 18 September 2023, thereby demonstrating his intention and desire to return to work.
There is no real contest between the parties as to the matters referred to at paragraph [14].
There must be a reasonable period of time where the employee has been absent without explanation or authorisation. On the material before me, it is apparent that from on or about 4 July 2023, the Applicant was absent from work on either paid or unpaid leave. As stated above, on at least some occasions, the Applicant made enquiries about returning to work and/or attempted to return to work and was directed by Mr Martin and/or Mr Kingston to remain on paid or unpaid annual leave. In those circumstances, I do not accept the contention that the Applicant was absent from work without explanation.
Furthermore, for abandonment of employment to have been found to have occurred on the facts, there must not be any communication from the employee during the absence or the communication from the employee clearly displays an intention of not returning to work. In this case, the Applicant clearly communicated with his employer by way of email sent to Mr Martin on 13 September 2023 at 3.12pm indicating he wished to return to work on 18 September 2023. It is clear that this communication from the Applicant to the Respondent evinces the Applicant’s intention to return to work on 18 September 2023.
Mr Martin responds on 14 September 2023 by email requesting an answer to a range of matters and the provision of documents including a letter from the Applicant’s doctor explaining why he failed two random drug tests at work, a report from the Applicant’s chiropractor stating that he was managing lift rehabilitation, a letter from the hospital outlining the Applicant’s stay there and treatment for his infection, further medical certificates, and advice as to whether he could return to normal duties and work in “room 5/bulk ups/forklift abilities”.
It is apparent from the correspondence exchanged by the Applicant and Mr Martin on 13 and 14 September 2023 that there is some contest between them as to the circumstances surrounding the Applicant’s return to work and the acceptability of the medical evidence supplied by the Applicant. What can be gleaned from the correspondence is that the Applicant evinces an intention to return to work on 18 September 2023 and Mr Martin requires “a resolution on all these matters” before “we can schedule a return to work”. There is no evidence before me of any communication between the Applicant and Mr Martin between 14 September 2023 and 25 September 2023 when Mr Martin communicates by correspondence that the Applicant’s employment has been terminated due to abandonment of employment.
In the circumstances I agree with the Applicant that the delay in responding was not caused by the Applicant.
For the reasons above, I find that the elements of abandonment of employment have not been demonstrated by the Respondent. I am not satisfied the Applicant has abandoned his employment.
Conclusion
As set out earlier, the definition of “dismissed” under s.386 of the Act applies to applications pursuant to s.365 of the Act. I am satisfied the Applicant’s employment relationship with the Respondent was terminated at the employer’s initiative.[10]
The jurisdictional objection is dismissed.
COMMISSIONER
Appearances:
Mr A Jewell, with permission, for the Applicant
Mr M Martin, of the Respondent.
Hearing details:
Melbourne
19 December 2023.
Video Hearing.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67].
[2] NSW Trains v James[2022] FWCFB 55 at [45].
[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200.
[4] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200.
[5] Abandonment of Employment [2018] FWCFB 139 at [21]; Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [69] and [81]; NSW Trains v James[2022] FWCFB 55 at [62]; Bourke & Ors v OS MCAP Pty Ltd[2022] FWCFB 178 at [46]-[53].
[6] Abandonment of Employment [2018] FWCFB 139 at [21].
[7] [2007] HCA 61.
[8] At [44].
[9] Abandonment of Employment [2018] FWCFB 139 at [22].
[10] See Saeid Khayam v Navitas English Pty Ltd T/A Navitas English[2017] FWCFB 5162.
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