Chomiczewski and Australian Manufacturing Workers Union v Cadbury Schweppes Pty Ltd
[1996] IRCA 459
•05 September 1996
DECISION NO: 459/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 6385 of 1995
B E T W E E N:
Richard CHOMICZEWSKI &
AUSTRALIAN MANUFACTURING WORKERS UNION
Applicants
A N D
CADBURY SCHWEPPES PTY LTD
Respondent
REASONS FOR DECISION
5 September 1996 PARKINSON JR
This is a decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent at its confectionary production facility at Ringwood in Victoria. He commenced the employment on 17 June, 1991 initially on a short term contract and the employment terminated on 21 November, 1995. The applicant was employed in the chocolate making area of the business. The applicant is 23 years old and was diagnosed as suffering from chronic pancreatitis. There is no dispute as to this fact and as a consequence of this illness the applicant was frequently absent from work.
The applicant contends that the employment was terminated by the respondent notifying him by letter that his absence from work was being treated by the respondent as an abandonment of employment. The applicant further contends that the reason or part of the reason for the termination of his employment was his temporary absence from work on account of illness or injury. The applicant alleges a contravention of s170DF(1)(a) and s170DE(1) and s170DE(2) of the Act.
The respondent contends that the applicant failed to account for his absence from work, and failed to inform the respondent that he was absent on account of illness. It further contends that the applicant abandoned his employment, and that in accordance with the provisions of the applicable award the respondent was entitled to treat the employment as having been terminated by the applicant. The respondent contends that there has been no contravention of the provisions of the Act and contends further that the applicant’s absence from work on account of illness did not form part of the reason for the termination of employment and further that s170DF(1)(a) does not apply having regard to the contents of Regulation 30D of the Act. It is appropriate to first consider the jurisdiction issue raised by the respondent, that is that there was no termination of employment at the initiative of the employer, but rather an abandonment by the employee.
The applicable award is the Confectioner’s Award 1980 (“the Award”) an award of the Australian Industrial Relations Commission. In addition the employment was regulated by an Enterprise Agreement, known as the Cadbury Schweppes Pty. Ltd. Confectionary Division, Ringwood and Scoresby Confectioners Agreement (“the Enterprise Agreement”) made between the respondent and the Australian Manufacturing Workers Union (“the Union”) an organisation of employees of which the applicant was a member. It is clear that there is no common law abandonment of employment in this case, however the respondent relies upon the award provision as to abandonment. The Award provides at Clause 7(e):
The absence of an employee from work for a continuous period exceeding 5 working days without the consent of the employer and without notification to the employer shall be prima facie evidence that the employee has abandoned his employment.
Provided that if within a period of 14 days from his last attendance at work or the date of his last absence in respect of which notification has been granted an employee has not established to the satisfaction of his employer that he was absent for reasonable cause, he shall be deemed to have abandoned his employment.
As to placitum (i) of this clause, it is clear that at the time the applicant left the respondent’s premises on 3 November, he did so with the approval of the respondent and because of illness. He had not at that point manifested any intent or conduct which would suggest an abandonment of employment. His conduct in reporting to the occupational health nurse suggests to the contrary and this is sufficient to displace the prima facie presumption in the first part of Clause 7(e) of the Award.
As to the second part of Clause 7(e) the failure of the applicant to notify the respondent in accordance with its procedures as to notification of illness, together with the fact that the applicant did not at any time during the course of the absence inform the respondent as to the reason for the absence, or as to its likely length, in my view constituted sufficient basis for the respondent to elect to rely upon the terms of the award as to abandonment of employment. However that is in so far as any entitlements arise to notice and other payments made pursuant to the award upon termination of employment. The fact that the respondent was entitled to utilise the award provision and treat the absence as an abandonment of employment does not preclude there having been a termination of employment at the initiative of the employer. In my view the respondent took steps to initiate the termination of the employment when it notified the applicant that it elected to rely upon the provisions of Clause 7(e) of the Award. The correspondence identifies that the respondent has recorded a termination date for the employment and advises that all outstanding entitlements would be forwarded. There were clear and positive steps taken by the respondent to effect the termination of the employment, albeit in accordance with the terms of the award. These steps are relevant in the context of the respondent contending that its conduct in electing to apply the award provision did not constitute termination at its initiative. I am not satisfied that the award provision operates or is automatically executed without some further act on the part of the respondent. In this case the act was the decision to elect to treat the applicant as having abandoned his employment. I am satisfied that there was a termination of employment at the initiative of the employer and consequently the court has jurisdiction to hear and determine the application.
The issue as to jurisdiction is however a different question to that as to whether the respondent had valid reason for the termination of the employment. In my view it did have valid reason. I turn now to consider the operation of s170DF and s170DE(1) and (2) and my reasons for concluding as I have.
It is appropriate at this point to set out more fully the background to the employment together with my findings of fact. The applicant has had significant number of absences from work on account of his illness and the evidence is that the respondent on some occasions sent the applicant to his local doctor for treatment. The evidence is also that the applicant had on a number of occasions been absent from work without notification being given to the respondent. Save for the absence in November 1995 resulting in the termination of the employment which is discussed later in this decision, the most recent of these absences occurred on 26 October, 1995 to 30 October, 1995 when the applicant was absent from work without any notification.
The evidence of the respondent was that the applicant failed to advise the respondent of the reason for his absence or its duration. Attempts were made on 26 August, 1995 by Mr Lucas and Mr Cloet of the respondent to contact the applicant to ascertain the reason for his absence from work. When they telephoned their evidence was that they spoke to the applicant’s mother who advised them that the applicant was not there and that she would attempt to find him. The evidence of the respondent was that Mrs Chomiczewski was very distressed during the course of the conversation as a result of concern for her son. I am also satisfied that at the time of this conversation, she was also affected by the fact that she had only recently returned from hospital after a serious hip operation, from which she suffered much pain and which required a long period of recuperation.
The respondent says that this telephone conversation occurred on 26 October, 1995. The applicant says that this telephone conversation occurred on 9 November, 1995. This date is important in the context of the events of November, leading to the employment terminating. It is clear however at this point that the applicant himself did not telephone the respondent during the period between 26 October, and 30 October, 1995 when he returned to work. No disciplinary issue was made of this absence, and this in my view is consistent with there having been a conversation at that time with the applicant’s mother.
On one other occasion when he was absent on account of illness, which absence was the subject of a medical certificate, the applicant was observed to be at a local hotel. This incident occurred on the evening of Monday 12 December, 1994 and was the subject of a written warning, acknowledged by the signature of the applicant on 15 December, 1994. (Exhibit R9) The applicant did have a medical certificate for the period of the absence including the evening of his absence from work on 12 December, however his explanation as to his incapacity for work and his whereabouts during on the evening of 12 December were not accepted by the respondent and nor are they accepted by this court. I accept the respondents evidence as to the circumstances of this warning. There is also other evidence in these proceedings of the applicant being absent from work and providing no notification of the absence in accordance with the respondents policy and the industrial agreement.
The reason for the termination of the employment relied upon by the respondent in this proceeding is not the fact of the applicant’s illness, but the failure of the applicant to simply notify the respondent as to his absence, the reason for the absence and the likely length of the absence. His failure occurred in the context of an operative policy, of which I am satisfied that the applicant was aware. The policy in this regard was identified in advice given to the applicant at the time of its implementation both in writing and orally in the course of meetings of employees. Further the applicant was reminded of this obligation by the occupational health nurse. I am satisfied that the failure was also a persistent failure on the part of the applicant and not merely an oversight in the circumstances. Whilst the applicant’s evidence was that he adopted a practice of not ringing the ‘hot-line’ but calling the medical centre directly to advise of absences, this evidence is not supported by the records of the centre identifying incoming calls notifying absences and the applicant’s evidence is that he at no time contacted the respondent to advise of these matters either in respect of the absence in October or November.
I accept the evidence of the respondent’s witnesses that the conversation between the applicant’s mother and Mr Lewis and Mr Cloet as to the applicant’s whereabouts took place on 26 October, in the course of the applicant’s absence from work in October, 1995 and not in the course of the absence from work in November, 1995. I also accept that the telephone conversation was initiated by the respondent and not by any person acting on behalf of the applicant. The applicant’s evidence as to his assumptions about messages being given on his behalf by his mother, or others, does not assist him. The responsibility lay with the applicant as the employee to advise or to ensure that advice had been given to the employer and in regard to the latter the applicant ought to have made firm inquiries to ensure that information had been passed on. The only evidence of such inquiries is as a consequence of the applicant speaking by telephone to his mother.
The event which led to the termination of the employment occurred when the applicant was again absent from work between 3 November and 21 November, 1995. He left the workplace on 3 November, 1995 when after visiting the respondent’s occupational health nurse, Ms Coade, he was permitted to leave work and advised to attend his own doctor. I accept Ms Coade’s evidence that he was also advised to contact the “hotline” and advise of illness and length of absence. The applicant did not contact the respondent again until 24 November, after he had received the respondent’s letter dated 21 November, 1995, wherein the respondent advised that it was treating his absence from work as an abandonment of employment.
I am satisfied that the applicant was absent from work without advising the respondent of the absence, its reason and without providing any medical certification in this regard. I am also satisfied that the applicant knew or reasonably ought to have known of the procedure to be utilised in circumstances where an absence is to be notified. This procedure was the subject of an industrial agreement, well publicised to employees, including the applicant. The action taken by the respondent is also to be considered in the context of other recent events in the employment, discussed earlier, wherein I am satisfied that the respondent had expressed its concern as to the applicant’s failure to notify the respondent of the circumstances of his absences. I am satisfied that the respondent had valid reason for the termination of the applicant’s employment based upon the conduct of the applicant and in this respect the respondent did not contravene s170DE(1) of the Act.
I turn now to consider the matters arising pursuant to s170DF( 1)(a) of the Act.
By operation of s170EDA of the Act it is for the respondent to establish that the reason for the termination of employment did not include the reason that the applicant was temporarily absent from work because of illness or injury as proscribed by s170DF(1)(a). In so far as is relevant Regulation 30D provides:
30D(1) [Consistent with Termination of Employment Convention]
This regulation applies for the purpose of clarifying, consistently with paragraph 2 of Article 6 of the Termination of Employment Convention and section 170CB of the Act, circumstances which are, or are not, intended to be included within paragraph 170DF(1)(a) of the Act.
30D(2) [Temporary absence if authorised leave]
For the purposes of paragraph 170DF(1)(a) of the Act, an employee’s absence from work because of illness or injury is to be taken to be a temporary absence if, due to the illness or injury, the employee is on authorised leave
30D(3)[Requirements of temporary leave]
For the purposes of paragraph 170DF(1)(a) of the Act, an Employee’s absence from work because of illness or injury (not being an absence to which subregulation (2) applies) is taken to be a temporary absence if the employee:
(a)is required by the terms of an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment, or an agreement certified or approved by such a body, to:
(i) notify the employer of an absence from work; and
(ii) substantiate the reason for that absence; and
(b) complies with those terms
30D(4) [Temporary absence if medical certificate]
For the purposes of paragraph 170DF(1)(a) of the Act, an employee’s absence from work because of illness or injury, not being an absence:
a) to which subregulation (2) applies; or
b)of a kind to which the terms mentioned in paragraph (3)(a) apply;
is taken to be temporary absence if the employee complies with subregulation (5) and, if applicable, subregulation (7) in relation to the absence.
30D(5) [Provision of medical certificate]
Within 24 hours after the commencement of an absence from work referred to in subregulation (4), or with such longer period as is reasonable in the circumstances, the ermployee must:
(a)obtain a certificate, signed by a medical practitioner, that states that the employee is unable to work during the period of the absence (other than such part of the period as might reasonably have expired before the certificate could be obtained); and
(b)give the certificate, together with information on the likely duration of the absence, to the employer.
30D(6)[Temporary absence from work not stated on medical certificate]
If a certificate given to an employer under subregulation (5) does not state that at the time and date of the certificate the employee’s absence from work was expected to be temporary, the employer may request the employee to obtain and give to the employer a further certificate, signed by a medical practitioner, that states:
(a)if at the time and date of the further certificate the employee is still unable to work - that the absence from work is expected to be temporary; or
(b)in any other case - that at the time and date of the certificate mentioned in subregulation (5), the absence from work was expected to be temporary.
30D(7)[Employee must comply with request]
An employee must comply with a request by the employer under subregulation (6) unless the request is reasonable in the circumstances of the case.
30D(8)[Reason for termination]
Subsection 170DF(1) of the Act and this regulation do not prevent an absence from work referred to in paragraph 170DF(1)(a) of the Act from being a reason for terminating an employee’s employment if:
(a)in the case of an absence referred to in paragraph (3)(a); or
(b)in the case of an absence referred to in subregulation (4), the employee fails to comply with subregulation (5) or (7); or
(c)in the case of an absence (not being an absence to which subregualtion (2) applies), the duration of the illness or injury is such that it would not be harsh unjust or unreasonable in the circumstances to terminate the employee’s employment.
30D(9)[“medical practitioner”]
In this regulation, “medical practitioner” means a person registered or licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners.
In this circumstance, whilst it is clear that the applicant was absent from work, as a consequence of the chronic ailment with which he suffered, I am satisfied that the respondent did no terminate the employment for reason including that he was absent on account of short term illness or injury. It is clear that the reason, must be the reason of the person making the decision to terminate the employment. In this case it was Mr Hall, the Director of Human Resources. The reason for the termination was the failure of the applicant, within a reasonable period, to notify the respondent of his absence, the likely length of the absence and the cause of the absence. I am satisfied that this was the reason for the termination of employment and that the fact of the illness of the applicant formed no part of the reason. The evidence of Mr Hall together with the objective history of the employment, including the level of tolerance by the respondent of the applicant’s absences, in circumstances where the applicant had not always acted consistently with being ill, leads me to be satisfied that it was not part of the reasons of Mr Hall for the termination of the employment.
It should be noted however, that I am of the view that s170DF(1))(a) of the act does not operate in these circumstance to prevent the absence from being a reason for the termination of the employment. This is as a consequence of the application of Regulation 30D(8) and Regulation 30D(2) and (3) to the circumstances of the absence. The applicant being the subject of various award and agreement requirements in relation to absence from work on account of illness, failed to notify the respondent of the absence in accordance with the requirements of Clause 9 of the Award and Clause 11 of the Certified Agreement. For the leave to be authorised the applicant was required to notify the employer on the allocated telephone number, and within a reasonable period of time provide a medical certificate. The applicant failed to comply with either of these requirements. In this case the applicant failed to advise of the likely length of the absence or to provide medical certification at any time prior to receipt of the letter dated 21 November, 1995. In the absence of such compliance I have concluded that the absence was not a temporary absence and nor was the applicant due to illness on authorised leave. Having regard to all of the above matters I am satisfied that the respondent did not contravene s170DF(1)(a) of the Act.
s170DE(2) - Harsh, Unjust or Unreasonable
I am not satisfied having regard to the evidence as to the applicant’s failure to inform the respondent of the reasons for the absence and his failure to provide or produce a medical certificate to the respondent, even after receipt of the letter of 21 November, 1995 that the termination of employment was harsh, unjust or unreasonable. This is particularly so as the evidence establishes that the applicant had been reminded frequently of the obligation to notify the respondent of absences. In this case the respondent was once again left with no information as to the whereabouts of the employee or when he may return to work. The applicant did not act responsibly towards the employer and in such circumstances, whilst the effect of the termination is likely to be greater on the applicant having regard to his illness, nevertheless I am not satisfied that the respondent acted unreasonably in terminating the employment. Nor am I satisfied that the penalty was harsh, having regard to the number of times the applicant had previously failed to advise of absences despite having been requested to do so.
s170DB - Notice of Termination.
I am satisfied that the applicant is entitled to the minimum period of notice pursuant to s170DB of the Act. The applicant was employed by the respondent for a period in excess of 3 years having regard to the commencement date in 1991 on the series of short term contracts. I am not satisfied that this is a circumstance where the applicant is guilty of serious misconduct in the sense contemplated by s170DB, such that it would be unreasonable for the respondent to continue the employment in the notice period. The relevant period of notice pursuant to s170DB(2) is not less than 3 weeks notice. I will order pursuant to s170EE(5) damages in the sum of $ 1,792.12 being the amount which should have been paid in lieu of notice. I have considered this finding as to notice, in the context of my conclusion that the termination of the employment was not harsh unjust or unreasonable and note that it does not disturb my conclusion in that regard. The application will in all other respects be dismissed.
Supplementary matter for information of the parties.
After this judgment had been listed and on 4 September, 1996 the Full Court of the High Court handed down judgment in State of Victoria and Others v Commonwealth of Australia (unreported) Brennan CJ, Dawson, Toohey, Gaudron, McHugh, and Gummow JJ. FC96/024. In that judgment Sections 170DE(2) and 170EDA(1)(b) of Division 3 of Part VIA have been stated to be invalid as being beyond the legislative powers of the Commonwealth. These provisions were determined to be severable. I have considered this judgment in its application to this case and am satisfied that its application makes no practical difference to the outcome of the proceeding.
I certify that this and the preceding eleven (11) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 5 September 1996
APPEARANCES
Counsel appearing for the applicant : Ms. P. Flint
Representatives for the applicant : Australian Manufacturing Workers
Union
Counsel appearing for the respondent : Mr. W. Alstergren
Solicitors for the respondent : Phillips Fox
Dates of hearing : 24 & 25 June 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 6385 of 1995
B E T W E E N:
Richard CHOMICZEWSKI &
AUSTRALIAN MANUFACURING WORKERS UNION
Applicant
A N D
CADBURY SCHWEPPES PTY LTD
Respondent
MINUTES OF ORDERS
5 September 1996 PARKINSON JR
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $ 1,792.12 in damages
pursuant to s170EE(5) of the Act.
The application in all other respects be dismissed.
Time for payment is 21 days from the date of this order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether TERMINATION at the initiative of employer - whether VALID REASON - ABANDONMENT whether employee through TEMPORARY ABSENCE abandoned employment - whether TERMINATION HARSH UNJUST UNREASONABLE.
Industrial Relations Act 1988, ss, 170DE(1), 170DE(2), 170DF(1)(a), 170EA
Industrial Relations Regulations, Regulation 30D(2) 30D (3), 30D (8)
Richard CHOMICZEWSKI v CADBURY SCHWEPPES PTY LTD
VI 6385 of 1996
Before : PARKINSON JR
Place : MELBOURNE
Date : 5 September 1996
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