Jovan Sandic v Perroplas Australia Pty Ltd - [2010] FWA 8682

[2010] FWA 8682

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jovan Sandic
v
Perroplas Australia Pty Ltd
(U2010/10679)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 13 DECEMBER 2010

Termination of Employment - Extension of Time - Abandonment of Employment - Employee Absent on Holidays Overseas - Knowledge that absence would bring employment to an end

[1] On 16 July 2010 Mr.Jovan Sandic lodged an application under s.394 of the Fair Work Act 2009 (‘the Act’) for an unfair dismissal remedy with respect to what he claimed was the termination of his employment by Perroplas Australia Pty Ltd (‘Perroplas’).

[2] The matter was conciliated but no settlement was reached. The matter was heard before me on 10 November. The matter proceeded by way of hearing having regard to the views of the parties and the factors set out in s.399 of the Act.

[3] Written submissions were filed by each side, and the following witnesses were called:

Mr.Jovan Sandic, applicant;

Mr.Vasile Taleski, General Manager;

Ms.Lyn Coombes, Plant Manager.

[4] I have had regard to all the submissions and evidence.

Evidence

[5] On 12 April 2010 Mr.Sandic applied for 2 months and 8 days leave from work, taking it as annual leave. The date of the last working day would be 27 April 2010 and the date of resuming work would be 5 July 2010.

[6] The leave form was signed as not approved, with the comment ‘Unpaid leave not approved’.

[7] On 13 April 2010 Ms.Coombes, the Plant Manager, signed a letter to Mr.Sandic which provided:

Dear Jovan

We are in receipt of your Application for Annual Leave. Your application states that you wish to take extended leave for a period of 2 months and 8 days. As your current annual leave accrual is only 13.68 days we understand that you are also applying for unpaid leave.

In view of your application, we wish to advise the following.

Leave without pay is not part of the industrial system and the company is under no obligation to accept your application, we can however allow your unpaid leave but with strict conditions. We advise you of these conditions as below.

• Unpaid leave is not subject to accruals for Annual Leave, Sick Leave or Long Service Leave.

• There will be no guarantee that the company will be able to maintain your position while you are away, which means there may be no employment available to you upon your return.

• Under these circumstances your employment with the company would be deemed terminated as at the end of your paid annual leave.

• It is advised that you contact us on your return from leave to confirm whether employment is available.

Could you please sign below in acknowledgement of this advice

Yours faithfully

[signed]

Lyn Coombes [signed]

Plant Manager Jovan Sandic

[8] Ms.Coombes’ evidence was not entirely consistent in various respects, but she claimed that its terms were explained to Mr.Sandic 1. Mr.Sandic’s evidence was also not entirely consistent, but he said that:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 8682
Decision Date: 13 DECEMBER 2010

CaseChat Overview and Summary

Jovan Sandic was employed by Perroplas Australia Pty Ltd and was subsequently dismissed for being absent on holidays overseas. Sandic appealed the termination of his employment, arguing that he was unaware that his absence would result in his employment being terminated. The Fair Work Commission heard the appeal. The central legal issue in the case was whether the employee's prolonged absence, known to him, justified his termination without notice or pay in lieu of notice. Additionally, the court needed to determine if the employer had reasonably extended the time limit for termination due to the employee's absence.

The Fair Work Commission found that the employer had indeed extended the time for termination, given the employee's knowledge of his absence and the impact it had on his employment. The Commission held that the employee's absence, coupled with his awareness of the potential consequences, constituted a form of abandonment of employment. Consequently, the employer was justified in terminating the employment without providing notice or pay in lieu of notice. The Commission ruled that the employer's actions were fair and reasonable under the circumstances.

As a result of the Commission's decision, Sandic's appeal was dismissed. The Fair Work Commission confirmed the employer's right to terminate the employment without further obligation. The employer was not required to provide notice or pay in lieu of notice, given the employee's abandonment of his duties and the employer's extension of the time limit for termination. The Commission's ruling underscored the importance of communication and awareness in employment terminations, particularly in cases involving extended absences.

Orders