Jarrett Yeoman v Point 2 Point Logistics Pty Ltd
[2011] FWA 7200
•28 OCTOBER 2011
[2011] FWA 7200 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jarrett Yeoman
v
Point 2 Point Logistics Pty Ltd
(U2011/7246)
COMMISSIONER GOOLEY | MELBOURNE, 28 OCTOBER 2011 |
Application for unfair dismissal remedy.
[1] Mr Jarrett Yeoman (the Applicant) was employed by Point 2 Point Logistics Pty Ltd (the Respondent) from 30 December 2008 until his employment ended in April 2011.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 24 May 2011 and then for hearing on 10 August 2011.
[3] The Applicant appeared on his own behalf and Mr Terry Leeson the Operations Manager for the Respondent appeared for the Respondent.
[4] The Applicant and Ms Marni Whatuira gave evidence for the Applicant and Mr Leeson gave evidence for the Respondent.
Jurisdiction of Fair Work Australia
[5] There is no dispute that if the Applicant was terminated by the Respondent that the Applicant was protected from unfair dismissal. The Respondent disputed that the Applicant’s employment was terminated by the Respondent.
The Evidence of the Applicant
[6] The Applicant was a truck driver but due to his family circumstances he had negotiated with Mr Leeson to come off the road. However, because of circumstances in the business, at the time the events described below happened, this had not occurred.
[7] On 3 April 2011 the Applicant was due to attend work. The Applicant contacted Mr Leeson and told him that his daughter was ill and he couldn’t attend work and that he needed to be with his daughter until she was better. 1
[8] The Applicant contacted Mr Leeson again on the Wednesday and apologised for not responding to Mr Leeson’s repeated attempts to contact him since Sunday. He indicated that Mr Leeson had accepted his apology.
[9] Mr Leeson then offered him the swift shift which was a local run working a night shift which meant he would be home by midnight each night.
[10] The Applicant said that Mr Leeson told him to contact him the next day. The Applicant said he didn’t know what time the swift shift started because it was always changing. He contacted Mr Leeson at 2.00 pm the next day. In that phone call Mr Leeson spoke to the Applicant about his phone use.
[11] Mr Leeson told the Applicant that he had deducted the costs of his personal calls on the work provided mobile phone from the Applicant’s wage. The Applicant said he disagreed with this and ‘started to get a bit heated.” He said to Mr Leeson “It’s wrong and I don’t want to discuss this over the phone; I’d rather come and see you face to face”. It was the Applicant’s evidence that Mr Leeson said bring your phone with you, and “it’s the last f...... time that [you’ll] step foot in the office.” Mr Leeson then hung up. 2
[12] The Applicant sent an email to Mr Leeson asking for his pay slips and said he would be in the next day to hand in his phone. In that email he did not make any reference to the termination of his employment. He did not attend work on Friday and sent an email apologising. He rang Mr Peter Blair the general manager and asked if he could meet him on Saturday but, as that was not possible, he met Mr Blair the next day and Mr Blair asked him for his keys. He returned the phone and collected his belongings.
[13] In cross examination the Applicant was asked why he did not respond to Mr Leeson’s repeated phone calls and messages and the note Mr Leeson had left at the Applicant’s home to call him urgently. The Applicant explained that he had had a breakdown. 3 He was asked why he was able to contact a fellow employee in the same time. The Applicant replied that the fellow worker was a friend and he thought he would let Mr Leeson know what was happening.
[14] The Applicant produced no medical evidence to support his claim that he had a breakdown.
[15] Mr Leeson put to the Applicant that he had previously been spoken to about personal use of the phone. The Applicant’s response was unclear. He did admit that he had been spoken to by Mr Leeson twice about his personal use of the phone and by a person named Grant. 4
[16] The Applicant explained that the reason he had not come into the office on the Friday, as he had told Mr Leeson he would, was because the statement Mr Leeson made to him had made him very angry and he did not think it would have been a “sit down conversation.” 5
[17] The Applicant then referred to legal advice he had received on Thursday.
[18] The Applicant conceded that when he spoke to Mr Blair on the Monday Mr Blair confirmed that the swift job was still available. 6
[19] Mr Leeson put to the Applicant that he had been given a week to decide if he wanted the swift job and he agreed that was correct. 7
[20] The Applicant, in cross examination, said that he had spoken to another driver who had been called in to do the swift shift on Thursday. It was his evidence that the driver told him that Mr Leeson had said that the Applicant no longer worked for him. 8
[21] Ms Whatuira, the Applicant’s partner, gave evidence for the Applicant. She was in the room when the phone call between the Applicant and Mr Leeson took place on 6 April 2011.
[22] She gave evidence that the phone call became heated. She heard the Applicant say “I will come in and discuss this with you face to face Terry.” After he put the phone down the Applicant said to her “Terry just hung up on me and gave me the sack.” She was told by the Applicant that Mr Leeson had said “just bring your f...phone in with you, this is the last f... time you will step foot in this office.” There was no evidence that Ms Whatuira heard what was said by Mr Leeson. 9
[23] She also gave evidence that the Applicant spoke to Mr Murray Scouter soon after the telephone call with Mr Leeson. While she recounted the content of the call there was no evidence that she heard what was said by Mr Scouter.
The Evidence of the Respondent
[24] The evidence of Mr Leeson was that he did not terminate the Applicant’s employment.
[25] It was Mr Leeson’s evidence that when advised by the Applicant that he could not work on Sunday night that he accepted this and arranged another driver to do the job. 10
[26] He made repeated attempts to contact the Applicant to arrange to have the truck returned to the yard but got no response. However using the GPS he was able to discover that the truck had been driven to the yard. 11
[27] The next day he sent a text to the Applicant asking him to advise when he could return to work. He also rang the Applicant’s mobile phone and home phone. He did this repeatedly but the phones rang out. 12
[28] On 5 April 2011 he again rang the Applicant’s home phone and mobile as well as the Applicant’s partner’s phone. There was no response. He then went to the Applicant’s home and left a business card on the front and back door asking the Applicant to call him urgently. Again he got no response. 13
[29] On 6 April 2011 he again rang the Applicant and did not get an answer. He rang Mr Craig Hunt, another employee and asked him if he had heard from the Applicant. Mr Hunt told Mr Leeson that the Applicant’s daughter had been very ill. Mr Leeson asked Mr Hunt to get the Applicant to call him urgently. 14
[30] At about 9pm that night the Applicant called Mr Leeson. He told him that he had significant personal issues. Mr Leeson was sympathetic but told Mr Leeson that not responding to his calls was unacceptable. He pointed out that he could not help him if he did not know what was going on. He asked him why he could call another employee but not return his calls. The Applicant admitted he received the calls from Mr Leeson and the business cards as well. 15
[31] Mr Leeson was told by Mr Blair that the Applicant’s employment was over because he had not contacted the company for three days. It was Mr Leeson’s evidence that he told the Applicant about this during the Wednesday night phone call, but that he had decided not to act on Mr Blair’s advice. Mr Leeson offered the Applicant the swift shift commencing the next day. Mr Leeson told him to ring him in the morning about the swift shift. The Applicant did not ring until 2.30 pm which was the starting time for the swift shift. It was Mr Leeson’s evidence that he rang the Applicant in the morning but he did not respond until 2.30 pm. 16
[32] Mr Leeson rejected the Applicant’s evidence that the Applicant did not know what time the swift shift started. The Applicant did not attend work on 7 April 2011.
[33] Mr Leeson was annoyed with the Applicant as he had “bent over backwards” to get him the swift shift in circumstances where the general manager and another director were complaining to him about the Applicant’s phone usage. 17
[34] Mr Leeson then had a conversation with the Applicant about his phone usage. He agreed that the Applicant wanted to meet face to face to discuss this and that he told the Applicant to bring his phone with him. However he denies swearing at the Applicant and denied saying it would be the last time the Applicant would set foot in the office. 18
[35] On that day Mr Leeson received an email from the Applicant in which he asked for a copy of his letter of appointment, signed contract and a print out of his payslips. In that email the Applicant said he would pick up the documents the next day and return the phone.
[36] The Applicant did not attend work on 8 April 2011.
[37] On 10 April 2011 the Applicant sent another email to Mr Leeson apologising for not coming in on Friday and saying he would be in to pick the documents up on Monday.
[38] The Applicant spoke to Mr Blair and told him he was going to file an unfair dismissal claim. It was Mr Leeson’s evidence that Mr Blair told the Applicant that his employment had not been terminated and that, in effect, the Applicant had abandoned his employment when he did not contact his employer for three days.
[39] It was Mr Leeson’s evidence that Mr Blair gave the Applicant a week to decide if he wished to continue working for the company and consistent with that he sent the Applicant an email on 18 April 2011, advising that the swift shift position was being held for him but he needed to know what the Applicant was doing as he was using agency drivers in the meantime.
[40] No response was received to this email.
[41] Mr Leeson denied that arranging for Mr Murray to attend work on 7 April 2011 to do the swift shift was evidence that Mr Leeson had terminated the Applicant’s employment. Mr Leeson gave evidence that he had made this arrangement during the time that the Applicant had been out of touch and the only reason Mr Murray completed the swift shift was because the Applicant had failed to turn up for work. 19
Was there termination at the initiative of the employer?
[42] The Applicant was absent from work from 3 April 2011. He notified his employer of the reason for his absence prior to the commencement of work on 3 April 2011 and his absence was authorised by his employer. However after that date the Applicant failed to respond to his employer’s repeated inquiries about his attendance at work. The Applicant ignored his employer’s messages.
[43] The Applicant accepted that this was unacceptable. His explanation was that he was under a lot of stress and his partner was suffering from depression. However in that period he was able to make contact with a fellow worker. Further Ms Whatuira gave evidence that the Applicant turned off his phone because he had enough of Mr Leeson not listening to him about not wanting to drive interstate. 20
[44] Mr Leeson did not, as was proposed by one of the directors of the company, treat the Applicant as having abandoned his employment. Instead he offered him an alternative route which would allow the applicant to spend less time away from home. I accept Mr Leeson’s evidence that he told the Applicant to contact him on Thursday morning. When the Applicant failed to ring him he attempted to contact the Applicant but to no avail. The Applicant then rang Mr Leeson but he was too late to commence the shift he was rostered to work.
[45] A heated conversation took place between the Applicant and Mr Leeson. However I do not accept the Applicant’s evidence that Mr Leeson terminated his employment during that phone call. I consider that the Applicant misunderstood Mr Leeson’s demand that he bring in his work phone when he came in. Nothing in Mr Leeson’s conduct before or after this phone call suggests that he wanted to terminate the Applicant’s employment. I accept his evidence that he was expecting the Applicant to attend work the next day when they would talk the matters over.
[46] I find that the Applicant failed to attend work and failed to respond to his employer’s attempts to get him to return to work. He abandoned his employment.
Conclusion
[47] The Applicant’s employment ended because he did not attend work. As there was no termination of employment at the initiative of the employer the application is dismissed.
COMMISSIONER
Appearances:
J Yeoman on his own behalf.
T Leeson for the Respondent.
Hearing details:
2011.
Melbourne:
August 10.
1 Transcript PN 30
2 Ibid PN 30 and 31
3 Ibid PN 52
4 Ibid PN 112
5 Ibid PN 138
6 Ibid PN 179
7 Ibid PN 187
8 Ibid PN 202
9 Transcript PN 338
10 Exhibit R1
11 Ibid
12 Ibid
13 Ibid
14 ibid
15 Ibid
16 Transcript PN 86
17 Transcript PN 88
18 Exhibit R1
19 Exhibit R1
20 Transcript PN 353-356
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