Israel Mor Hiam v Jodack Pty Ltd T/A Snap Caulfield South

[2016] FWC 2265

[2016] FWC 2265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Israel Mor Hiam
v
Jodack Pty Ltd T/A Snap Caulfield South
(U2015/4983)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 11 APRIL 2016

Application for relief from unfair dismissal – harsh, unjust or unreasonable – jurisdictional objection – abandonment of employment – jurisdictional objection upheld – application dismissed.

[1] Mr Israel Mor Hiam (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 20 April 2015 alleging that the termination of his employment by Jodack Pty Ltd T/A Snap Caulfield South (the Respondent) on 13 April 2015 was unfair.

[2] In its Form F3 – Employer Response to Unfair Dismissal application the Respondent raised a jurisdictional objection, contending that the Applicant was not dismissed but that his actions were consistent with an abandonment of employment under clause 14 of the Graphic Arts, Printing and Publishing Award 2010 1 (the Award).

[3] The application was the subject of an unsuccessful conciliation convened by the Commission on 12 May 2015. Directions were subsequently issued on 4 June 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the Respondent’s jurisdictional objection and the merits of application. Those Directions were revised on 24 June 2015 and again on 4 August 2015.

[4] The Respondent’s jurisdictional objection and the merits of application were heard on 18 August 2015. At the hearing, the Applicant appeared on his own behalf, while Mr Robert Hall-Boman of the Printing Industries Association of Australia appeared on behalf of the Respondent with Ms Kylie Walker. The Applicant provided two witness statements, as did Mr David Clarke, the Respondent’s Managing Director. Witness statements on behalf of the Respondent were also provided by Mr Roger Budd, the Respondent’s Production Manager, and Mr Rodney Hagart, a Customer Service Representative with the Respondent.

[5] For the reasons set out below, I have found that the Applicant abandoned his employment in accordance with clause 14.2 of the Award. As such, the Respondent’s jurisdictional objection is upheld. The application is therefore incompetent and must be dismissed.

Background

[6] The Applicant commenced employment with the Respondent on 3 March 2014 as a Customer Service Representative.

[7] In January 2015 the Applicant approached the Respondent requesting two periods of leave, the first in early March 2015 to attend a close friend’s wedding overseas and the second a two week period over Easter 2015 to attend an overseas family holiday. The Respondent approved the first request but declined the latter as its other Customer Service Representative, Mr Hagart, had already had leave approved for the Easter period.

[8] The second period of leave was again raised by the Applicant in March 2015 when he advised the Respondent that his father-in-law had purchased airline tickets for him to attend the overseas family holiday. The Respondent contended that it advised the Applicant that its position remained unchanged given that Mr Hagart had approved leave over Easter.

[9] The Respondent further contended that the Applicant verbally raised the leave issue with the Respondent on 20 March 2015 and that the Applicant was advised that the Respondent’s position had not changed and that were he to take the period of leave without authorisation that his actions would amount to a repudiation of his employment.

[10] On 23 March 2015 the Applicant wrote to the Respondent in the following terms:

“Dear David,

As per our conversation from late January, I will be taking personal leave from the 30th of March and returning to work on Monday, the 13th of April.

The reason for this is a trip to Japan I will be taking with my family for the Jewish Passover holiday.

I request that you pay as much of these 8 days from my annual leave entitlements and understand that some of this time will be leave without pay.” 2 (Underlining added)

[11] The Applicant contended that he gave the abovementioned letter to the Respondent on 20 March 2015. The Applicant also contended that he received no response to the above letter and proceeded to take the period of leave, with his last day at work being 27 March 2015.

[12] The Respondent contended that it tried to contact the Applicant on his mobile phone on 30 and 31 March 2015, leaving voicemail messages on both occasions, and that it subsequently wrote to the Applicant on 31 March 2015 requesting that he confirm his whereabouts. The Respondent stated that the Applicant did not respond at any time.

[13] The Applicant returned to the workplace on 13 April 2015 and contended that he was informed by the Respondent that he was no longer employed as he had resigned when he took leave on 27 March 2015.

The Respondent’s Jurisdictional objection

[14] I will deal first with the Respondent’s jurisdictional objection.

The Applicant’s case

[15] The Applicant acknowledged in his submissions that he took leave for the period 27 March to 13 April 2015 and that on his return from leave the Respondent advised him that his employment had ended as he had resigned at the time he took leave. Specifically, the Applicant submitted that he had not resigned and that the Respondent sought to justify its decision to end his employment on the basis of abandonment to avoid dismissing him for taking leave.

[16] The Applicant provided two witness statements, the first was received by the Commission on 29 June 2015 3 and the second was dated 19 July 20154. I note that there are some inconsistencies between those two witness statements, some of which are highlighted below. Key aspects of the Applicant’s witness statements were that:

• in January 2015 he advised Mr Clarke that he wished to take leave in early March 2015 to attend the overseas wedding of a close friend and again at the end of March 2015 to join a family trip to Japan;



• Mr Clarke’s response was that it may not be possible but that the issue could be discussed later (first witness statement), though in his second witness statement the Applicant deposed that Mr Clarke had initially refused both holidays but later said that he would “allow the first one but not the other” 5;




• at no stage in that conversation did Mr Clarke mention another employee requesting time off at Easter 2015;

• on 20 March 2015 he confirmed the dates for his annual leave in writing, leaving the letter in Mr Clarke’s office while Mr Clarke was on the telephone;
  
• Mr Clarke did not respond to that letter;
  
• while on annual leave Mr Clarke attempted to contact him by phone and also wrote to him;
  
• he was unable to listen to the voicemail messages left on his mobile phone by the Respondent until he returned to Australia from Japan on 11 April 2015;
  

• Mr Clarke’s attempts to contact him while he was absent were a ruse to orchestrate the appearance of his annual leave being an abandonment of employment; and

• he returned to work on 13 April 2015 as previously advised to the Respondent at which time Mr Clarke said “you don’t work here anymore, you resigned.”

[17] Key aspects of the Applicant’s oral evidence were that:

• he had never received explicit approval that he could take leave to travel to Japan, but that he formed the impression from the various conversations he had with Mr Clarke about his leave request that Mr Clarke had approved his leave;



• Mr Clarke had never given him a clear yes that he could take leave to travel to Japan for a family holiday;



• he did not call Mr Clarke after reading his letter upon his return from Japan on 11 April 2015 as his preference was to go to work and resolve the issue face-to-face; and



• he believed Mr Clarke had led him to believe that his leave was approved so that he could claim abandonment.

[18] Under cross examination, the Applicant was asked why he thought there would have been an issue upon his return from Japan and why Mr Clark would have been upset with him on 13 April 2015 when he returned to work if his leave had been approved. The Applicant responded that he was unable to explain why Mr Clark was upset on 13 April 2015 and that the issue to be resolved may have arisen as a result of some sort of confusion regarding his leave.

[19] In his closing oral submissions, the Applicant submitted that to the best of his recollection, Mr Clarke never made it clear to him that if he was to go on annual leave that he would effectively be resigning or quitting his job. The Applicant also contended that, by never providing a clear response regarding his leave request, Mr Clarke led him to believe that his leave had been approved, adding that he was never given a no but rather a commitment to talk about it further. Finally, the Applicant highlighted that following his letter to Mr Clarke of 20 March 2015 there were several days during which Mr Clarke could have responded, adding that Mr Clarke did not do so.

The Respondent’s case

[20] The Respondent submitted that the Applicant’s termination of employment was at his own initiative and that the evidence demonstrated, among other things, that:

• the Applicant was advised by the Respondent on 17 and 20 March that if he chose to attend his family holiday instead of attending work he would first need to resign from his employment;



• the Applicant advised the Respondent that he would be attending his family holiday;



• the Applicant’s action in failing to attend work on 30 March 2015 was understood and accepted by the Respondent to mean that he had resigned from employment or no longer intended to be bound by his contract of employment;



• the Respondent informed the Applicant on 13 April that it had accepted his resignation;



• the Respondent never informed the Applicant at any time that his employment was terminated;



• the Respondent never took any action or threatened to take any action that was intended to bring the employment relationship to an end, with any action taken to bring the employment relationship to an end being at the Applicant’s initiative; and



• there was no sound basis on which the Applicant could have surmised that the Respondent had approved his request for leave to attend the family holiday.

[21] As previously mentioned Mr Clarke provided two witness statements, the first dated 29 June 2015 6 and the second dated 17 July 20157. Mr Clarke deposed in his witness statements, inter alia, that:

• the Applicant, shortly after returning from his Christmas leave, asked him for a week off in early March to attend a friend’s wedding in Israel and two weeks off over the Easter period to go on a family holiday in Japan;



• his immediate reaction was to say no to both requests but that he subsequently advised the Applicant that he would approve the leave to attend his friend’s wedding on the condition that he forgot about the leave over Easter as it would not be approved;



• on 17 March 2015 the Applicant advised him that his father-in-law had purchased airline tickets for the Applicant to travel to Japan, with Mr Clarke responding that that was his father-in-law’s problem and that the Applicant would have to get out of it as he was not going as agreed;



• on 20 March 2015 the Applicant verbally advised him that he had decided to go to Japan, with Mr Clarke stating “… I’m afraid you’ll have to resign because as I’ve already told you, you can’t have time off, it’s just not possible”;



• on 23 March 2015 the Applicant left the abovementioned letter on Mrs Clarke’s desk while Mr Clarke was on the phone, with Mr Clarke not reading the letter until later that evening;



• he was unable to discuss the letter with the Applicant as the Applicant was absent as a result of illness on 24 and 25 March 2015, with Mr Clarke absent on 25, 26 and part of 27 March 2015 as a result of eye surgery and a reaction to anaesthetic;



• he interpreted the abovementioned letter from the Applicant as meaning that the Applicant would attend work on 30 March 2015;



• he unsuccessfully tried to ring the Applicant on his mobile phone on both 30 and 31 March 2015 after he had failed to attend work on 30 March 2015, leaving a voicemail message on both occasions asking the Applicant to contact him;



• he also wrote to the Applicant’s home address on 31 March 2015, with the letter stating “We have tried to contact you by telephone twice on Monday 30^th of March 2015 and Tuesday 31^st of March 2015. We left a message on voice mail asking you to contact us. We are concerned that you have not reported for work. Please contact us urgently to advise why you are not at work” 8;



• on 13 April 2015 when he saw the Applicant at work he said “What are you doing here? You’re no longer employed by this company, you ratified your position with the company when you went on holiday”;



• the Applicant’s claim that he had a legitimate entitlement to annual leave was untrue as he did not have enough leave accrued for the requested Easter leave;



• the Applicant’s claim that in January 2015 he had said that he would discuss the requested Easter leave further was not true; and



• he could not understand how the Applicant could claim that Mr Clarke had not responded to his request for leave when on 17 and 20 March 2015 he said to him that the leave would not be approved.

[22] Attached to Mr Clarke’s second witness statement was an extract from the Snap Caulfield South Employment Policies and Procedures which, in respect of annual leave, provides as follows:

“All employees are entitled to four weeks’ annual leave each year. This should be taken at a time convenient to both Snap Caulfield South and yourself. You should be aware that it may not always be possible to grant leave at the precise time you would like it. No holiday booking should be made until your dates of leave have been agreed. At least two weeks’ notice of annual leave is required.” 9 (Underlining added)

[23] Mr Clarke reaffirmed key aspects of his witness statements in his oral evidence. Beyond this, he attested that:

• he had very clearly told the Applicant on at least three occasions that leave for his Japan trip would not be approved under any circumstance;



• the Applicant had given him the abovementioned letter on 23 March 2015 and not 20 March 2015 as stated by the Applicant;



• when he phoned the Applicant on 30 and 31 March 2015 he did so not expecting to speak to the Applicant but rather to have a record of his absence, adding that he wrote to the Applicant on 31 March 2015 for the same reason;



• he knew where the Applicant had gone when he did not attend work on 30 March 2015; and



• he was surprised when he saw the Applicant at the workplace on 13 April 2015 as he considered that he had walked out on his job.

[24] Mr Budd in his witness statement 10 deposed, among other things, that the Applicant had mentioned to him during a lunch break about going to Japan for a family reunion, adding that the Applicant had said that Mr Clarke did not want to give him this time off. Mr Budd also deposed that on 27 March 2015 he asked the Applicant as he was leaving “Are you coming back?” and that while the Applicant did not respond he shook his head, which he interpreted as meaning that the Applicant was not returning. Mr Budd also deposed that he could not believe it when the Applicant returned to the workplace on 13 April 2015.

[25] In his oral evidence Mr Budd attested, inter alia, that:

• he was not involved in any of the discussions between Mr Clarke and the Applicant regarding the latter’s leave request;



• the Applicant had never said to him or anyone else in the company that he was resigning or not coming back to work; and



• Mr Clarke had made it very clear to the Applicant that there was no way he would get leave to go to Japan.

[26] Key aspects of Mr Hagart’s witness statement 11 were that:

• when he returned from leave on 12 January 2015 he spoke to Mr Clarke about taking a few days’ leave either side of Easter;



• he asked for the above leave prior to the Applicant speaking to Mr Clarke about his proposed leave;



• when he advised the Applicant that he would be taking leave over Easter, the Applicant said something along the lines of “Well bad luck because I’m going to Japan for 2 weeks over that same time”;



• on 27 March 2015 the Applicant approached him as he was leaving and said words to the effect “nice knowing you”, which he interpreted as the Applicant saying goodbye for good; and



• Mr Clarke said to the Applicant on 13 April 2015 that by not turning up for work on 30 March 2015 he had resigned and the company had accepted his resignation, with Mr Clarke also saying that the Applicant could not just take leave whenever he felt like it.

[27] In his oral evidence, Mr Hagart attested that he understood that Mr Clarke had not approved the Applicant’s leave request to go to Japan because there would be no one to cover the front desk and because the Applicant did not have any accrued leave.

The statutory framework

[28] Section 386 of the Act deal with the meaning of dismissed and provides as follows:

“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.”

[29] In this case the Applicant submitted that he had not resigned from his employment. Accordingly, s.386(1)(b) of the Act is not relevant in this case. The threshold question which arises in those circumstances is whether the Applicant’s employment had been “terminated on the employer’s initiative” as per s.386(1)(a) for the Act. I turn now to consider that issue.

Was the Applicant dismissed?

[30] A Full Bench of the then Australian Industrial Relations Commission considered the meaning of the expression ‘Termination at the initiative of the employer” in Searle v Moly Mines Ltd (Searle) 12. Specifically, the Full Bench said in Searle:

“[20] A Full Bench recently considered the meaning of the expression “termination at the initiative of the employer”‘ in O’Meara v Stanley Works Pty Ltd. For our purposes it is sufficient to refer to the following passage in which, having referred to the authorities, the Commission said:

‘[23] In our view the full statement of reasons in Mohazab [(1995) 62 IR 200] which we have set out together with the further explanation by Moore J in Rheinberger [(1966) 67 IR 154] and the decisions of Full Benches of this Commission in Pawel [Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C] and ABB Engineering [Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C] require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” [Mohazab at page 205.] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’ ” (Underlining added)

[31] There are clearly a number of issues that are disputed in this matter, with a key issue in dispute being whether the Applicant’s request for leave to travel to Japan was approved or refused. As noted above, the Applicant contended that by never providing a clear response regarding his leave request that Mr Clarke led him to believe that his leave had been approved. However, under cross-examination the Applicant attested that he had never received explicit approval to take leave to travel to Japan. On the other hand, Mr Clarke’s evidence was that he had very clearly told the Applicant on at least three occasions that leave for his Japan trip would not be approved under any circumstance. Mr Clarke’s evidence was also that he advised the Applicant on 17 and 20 March that if he chose to attend his family holiday in Japan instead of attending work he would first need to resign from his employment Both Messrs Budd and Hagart attested that Mr Clarke had made it clear to the Applicant that his request for leave had not been approved.

[32] On this issue, I prefer Mr Clarke’s evidence regarding the series of discussions he had with the Applicant regarding his leave request and in particular that he had made it clear to the Applicant that leave would not be approved for him to travel to Japan.

[33] Beyond this and drawing on the language in Searle, there is no material before the Commission of any action on the part of the employer which was either intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end. The Respondent’s decision to not approve the Applicant’s leave request was in my view entirely reasonable in the circumstances, particularly having regard to its Employment Policies and Procedures regarding annual leave (see paragraph [22] above). While Mr Clarke acknowledged in his evidence that he advised the Applicant that if he chose to go to Japan instead of attending his employment he would first need to resign from his employment, there is no material before the Commission of the Respondent pressing the Applicant to resign. I note also that neither the voicemail messages of 30 and 31 March 2015, nor the Respondent’s letter to the Applicant of 31 March 2015 nor the language used by the Respondent on 13 April 2015 refer to or are suggestive of the Respondent having taken any action to end the employment relationship. It is also clear from the material before the Commission that at no stage did the Applicant formally resign from his position.

[34] The question that arises from that analysis is whether the Applicant’s absence constituted an abandonment of employment.

[35] As previously mentioned, clause 14 of the Award deals with abandonment of employment and provides as follows:

“14. Abandonment of employment

14.1 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 may be evidence that the employee has abandoned their employment.

14.2 If within a period of 14 days from the last attendance at work or date of the 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 the employee was absent for a reasonable cause, the employee is deemed to have abandoned their employment.

14.3 Termination of employment by abandonment in accordance with this clause will operate as from the date of the last attendance at work, or the last day’s absence for which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is later.”

[36] With regard to clause 14.2 of the Award, the material before the Commission indicates that:

• the Applicant’s last attendance at work was on 27 March 2015, with his next attendance being on 13 April 2015 – a period of 16 days;



• no consent had been given by the Respondent for the Applicant’s absence;



• the Applicant did not communicate with the Respondent during this period;



• despite this, the Respondent knew where the Applicant was; and



• in the Respondent’s view the Applicant was absent without a reasonable cause.

[37] Based on the above analysis, under clause 14.2 of the Award the Applicant is deemed to have abandoned his employment. This supports the Respondent’s jurisdictional objection being upheld.

[38] In circumstances where the Respondent’s jurisdictional objection is upheld, it is not necessary for the Commission to consider the merits of the application.

Conclusion

[39] For the reasons outlined above, I find that the Applicant abandoned his employment in accordance with clause 14.2 of the Award. As such, the Respondent’s jurisdictional objection is upheld and the application is incompetent and must be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

I. Mor Hiam on his own behalf.

R. Hall-Boman with K. Walker for Jodack Pty Ltd T/A Snap Caulfield South.

Hearing details:

2015.

Melbourne:

August 18.

 1   MA000026

 2   Attachment to Form F3 – Employer Response to Unfair Dismissal Application

 3   Exhibit M1

 4   Exhibit M2

 5   Ibid at Paragraph 17

 6   Exhibit HB1

 7   Exhibit HB2

 8   Exhibit HB5

 9   Exhibit HB2 at Attachment A2

 10   Exhibit HB6

 11   Exhibit HB7

 12 (2008) 174 IR 21

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