Gregory Lloyd v Alexander M Pty Ltd

[2013] FWC 7026

[2013] FWC 7026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Lloyd
v
Alexander M Pty Ltd
(U2013/1334)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 18 SEPTEMBER 2013

Application for an unfair dismissal remedy - abandonment of employment - alleged overpayment - application dismissed.

[1] On 24 April 2013 Mr.Gregory Lloyd lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (‘the Act’).

[2] The matter was conciliated and no settlement was reached.

[3] The case was conducted by hearing pursuant to ss.398-399 1. Pursuant to s.596(1)(a) I granted permission for the parties to be represented by a lawyer, because it would enable the matter to be dealt with more efficiently, given the complexity of the matter. Unfortunately the case was marked by extensive conflict between the two legal representatives about the form of questions asked by counsel for the employer during the leading of evidence, and the admissibility of evidence.

[4] The employer submitted that the applicant abandoned his employment, and that there was no dismissal within ss.385, 386, and 394(1). The applicant submitted that he was dismissed. There is no disagreement that if there was a dismissal, that the Small Business Fair Dismissal Code applied and was not followed, and that the dismissal is harsh, unjust or unreasonable. However, the employer submits that an amount of 9 weeks’ pay was overpaid to the applicant, and this should be taken into account and reduce the amount of compensation payable to the applicant.

Abandonment of Employment

[5] Mr.Stefano Tartaria gave evidence that he attended the premises of Comfort Furniture in Melbourne, which was run by Mr.Lloyd as manager, in order to review the management and conduct of the store’s operations. He said that the business ran at a considerable financial loss. He asked Mr.Lloyd a number of questions about:

● the apparent overpayment of his wages/salary;

● his attendance on the premises;

● the use of company floor space and delivery systems for the sale and delivery of third-party furniture without any apparent financial benefit flowing to the employer, or indeed the knowledge of the employer; and,

● the nature of certain documents.

[6] He said that Mr.Lloyd asked for a few days in order to clear his name. He agreed to this. Mr.Lloyd left the premises and never contacted him or the company at all, let alone provided an explanation or answer with respect to each of the above issues. He tried to contact Mr.Lloyd on several occasions but he did not answer his company mobile phone. Mr.Lloyd continued to have the business mobile phone during that period. He left messages, and no messages were ever returned 2. When the phone was returned two days later the employer tried to contact him through other means but ‘He just disappeared’3.

[7] Mr.Lloyd gave evidence that he was accused of colluding with Mr.Kent to receive overpayments, and that ‘we want to finish you up right now’. He demanded the keys to the vehicle and store, and sent him home in a cab. The following day he returned to the premises, returned the mobile phone, collected paintings and attended to other matters. He was told to ‘get off the premises’ 4. Mr.Tartaria denied these allegations.

[8] On both versions of events Mr.Lloyd never resumed work, and filed an unfair dismissal application on 24 April 2013.

[9] I have had the opportunity hear the evidence given by Mr.Lloyd and Mr.Tartaria. I prefer the evidence given by Mr.Tartaria. The evidence given by Mr.Lloyd was vague and unclear in many respects. His explanation for the events of 8 April was at best difficult to follow. Turning to specific issues, he could have easily cleared up an important issue alleged against him, namely that he was overpaid his wages by substantial amounts. He was put on notice about this issue in a conversation he had with Mr.Tartaria on 8 April, in the employer response to his application for an unfair dismissal remedy on 10 May (‘apparent significant overpayments of wages/salary made to the applicant’ 5), and in employer witness statements filed on 19 August. Finally, in cross examination he appeared to concede the point but qualified it by stating that he had not ‘physically gone to the bank and checked’6. In his witness statement filed on 29 July he said that he told Mr.Tartaria that he knew ‘nothing about that’ in reply to a question about alleged overpayments of his wages July through to September7. This was an issue that Mr.Lloyd knew would be raised and, instead of settling the issue one way or another, his evidence was unclear.

[10] Abandonment of employment is the leaving of employment by the employee without due and proper notice. Where there is a repudiation of the contract by one party the other party may choose whether or not to accept the repudiation: Automatic Sprinklers v. Watson 8, Turner v. Australasian Coal and Shale Employees9. The issue of abandonment of employment was considered by a Full Bench of the Commission in Searle v. Moly Mines Limited10, applied in Sharpe v. MCG Group11and Lazar v. Inghams Enterprises12. I have had regard to and applied these decisions.

[11] In my view Mr.Lloyd asked for time to respond to questions on 8 April. The employer agreed to this. Despite Mr.Lloyd’s request, he never responded. Mr.Lloyd never provided his employer with any answers to a legitimate set of questions about the running of the business, which went to issues which were central to the profitability of the business, to the conduct of Mr.Lloyd, and to issues of overpayment of wages. The employer had the right to ask these questions and to have them responded to. Mr.Lloyd never contacted the employer except to collect his possessions from the premises. Not only did he not contact his employer as he had implicitly agreed to do, but when the employer tried to contact him, he did not answer his mobile phone, and did not return messages. He did not answer other messages. He did not return to work or attempt to do so. His actions indicate that he had decided not to continue the employment relationship in any form. There was no action by the employer to terminate his employment. There was an abandonment of employment.

[12] I dismiss the application. An order is contained in PR541849.

DEPUTY PRESIDENT

Appearances:

Mr A McDonald for the applicant

Mr Gilbert for the respondent

Hearing details:

2013

Melbourne

2 September

 1   PN356.

 2   Exhibit A1, paragraphs 2-18.

 3   PN669.

 4   Exhibit L2, paragraphs 21-26.

 5   Form F3, 10 May 2013.

 6   PN553-555.

 7   Exhibit L2, paragraph 23.

 8 (1946) 72 CLR 435.

 9 (1984) 6 FCR 177.

 10   [2008] AIRCFB 1088.

 11   Asbury C, [2010] FWA 2357.

 12   Watson VP, [2012] FWA 8815.

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<Price code A, PR541848>