Kurt Olsen v Saniflo (Australasia) Pty Ltd

[2013] FWC 1268

[2013] FWC 1268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kurt Olsen
v
Saniflo (Australasia) Pty Ltd
(U2012/9556)

COMMISSIONER BISSETT MELBOURNE, 28 FEBRUARY 2013

Jurisdictional objection that the Applicant was not dismissed - found Applicant abandoned his employment - objection upheld.

[1] On 29 August 2012 Mr Kurt Olsen (the Applicant) made an application to Fair Work Australia (now the Fair Work Commission, ‘the Commission’) alleging that his employment had been terminated by Saniflo (Australasia) Pty Ltd (Saniflo or the Respondent) on 14 August 2012 and seeking relief from unfair dismissal.

[2] A jurisdictional objection was subject to hearing before me on 15 February 2012. At the conclusion of the hearing I handed down my decision on transcript. Now edited, my decision was as follows:

This is an application for unfair dismissal made by Mr Kurt Olsen against Saniflo (Australasia) Pty Ltd. The Respondent, Saniflo, has objected to the application on the basis that it says the Applicant abandoned his employment in that he failed to attend work on and from 6 August 2012, and that he was not during this time on approved leave. The Applicant says that negotiations were occurring over an agreement between himself and the company on a separation from the company, and that, in any event, the company did terminate his employment by letter dated 14 August 2012.

I am mindful that this matter has been before the Commission since late August 2012 for jurisdictional issues only. I consider it appropriate to advise the parties of my decision now in the interests of a speedy resolution of the matter. It is not my intention to deliver detailed reasons for my decision now, but rather to reduce these to writing and issue them in the near future.

Section 386 of the Fair Work Act sets out the meaning of dismissal for the purpose of unfair dismissals. It is my finding on the basis of the evidence and the material before me today that the Applicant has not been dismissed at the initiative of the employer, and that the Applicant was not forced to resign because of the conduct or course of conduct of the Respondent. I find that the Applicant did fail to attend work on and from 6 August 2012, and as such the Applicant abandoned his employment.

[3] Following is my reasons for the decision.

Background

[4] The Applicant did not include anything with his application such that the reason for dismissal or why this was an unfair dismissal could be discerned.

[5] On 10 September 2012 the Saniflo filed a response to the claim. In that response it claimed the Applicant had not been dismissed but had failed to attend work from 6 August 2012.

[6] Directions were issued by the Commission staff requiring the Applicant file and serve submissions and other documentary evidence on which he intended to rely in support of an extension of time (the application was made outside the 14 day period then provided in the Act) for the lodging of his application by 16 November 2012. The Respondent was required to file and serve its material by 30 November 2012. The extension of time was listed to be heard before me at 9.00am on 14 December 2012.

[7] The Applicant failed to appear at the hearing on 14 December 2012. At that time the Respondent advised that it had also failed to comply with directions in that it had filed material on the question of whether or not the Applicant had been dismissed and not in relation to the extension of time. As the Respondent had failed to file material in accordance with the directions it did not object to the matter being adjourned to a later date. The Respondent indicated a desire that the jurisdictional matter in relation to whether or not the Applicant had been dismissed should be dealt with in the first instance.

[8] At the conclusion of the hearing it became apparent that both the Applicant and his partner had attempted to contact the Commission to advise that he was unable to attend the hearing. Later that morning an email was received from the Applicant formalising a request for an adjournment.

[9] On 17 December 2012 I issued further directions for dealing with the jurisdictional objection of the Respondent that the Applicant had not been dismissed and setting a timetable for the filing of material with the Commission and the serving of such material on the respective parties. The Respondent indicated that it continued to rely on the material it had filed on 30 November 2012.

[10] The Applicant filed limited material on 7 February 2012.

Evidence and submissions

The Respondent

[11] Mr Esprit gave evidence for the Respondent. He stated that Mr Olsen was a sales representative for the Respondent in Victoria, South Australia and Tasmania. He might come into the office now and then but was mainly on the road visiting clients. The Applicant had access to his emails whilst he was out of the office. 1

[12] He says that on 18 April 2012 the Applicant received a written warning in relation to inadequate performance of his duties. 2 The Applicant received a second written warning on 23 July 2012 in relation to ‘misconduct, unsatisfactory level of professional skills, unsatisfactory maintenance of high ethical standards and breaches of confidential information.’3

[13] Mr Esprit says that on 25 July 2012 he received an email from the Applicant which stated, in part:

I have just opened a letter in relation to my employment & it looks like I have already missed the required date set by Saniflo.

The letter today & is stamped 25th July 2012. Naturally it is hard for me to reply by a set time (5pm - 24th July 2012) if the time has passed.

...

I think it is best that Brad & I remain on annual leave till the settlement is finalised.

Kurt 4 (sic)

[14] Mr Esprit took this email to be a response to the letter sent to the Applicant by email on, and dated, 23 July 2012.

[15] Mr Esprit’s evidence is that, whilst Mr Olsen said in the email of 25 July that it was best he remain on annual leave, the Applicant was not on any approved leave at that time. 5

[16] Following receipt of the email of 25 July 2012 Mr Esprit says he had a conversation with Mr Olsen where it was agreed Mr Olsen would come into the office on 6 August 2012 for a meeting. Mr Olsen did not attend the meeting. Mr Esprit’s evidence is that he rang the Applicant on 6 August 2012 6 to ask why he was not at work but the call was not returned. Mr Esprit then sent a letter to the Applicant requesting that he return to work immediately. That letter indicates the Respondent has a number of issues with the Applicant, including that he had not submitted any leave application and his absence was therefore unauthorised and a breach of his contract. The letter also said that if the Applicant did not return to work this could have implications for his employment, including termination of his employment and that failure to return may be considered as abandonment of his employment The letter was sent to the Applicant by mail and by email (using the email address from which the email of 25 July 2012 was sent by the Applicant). Neither the letter nor email was returned as not delivered.7

[17] On 14 August 2012 Mr Esprit wrote to the Applicant again indicating that as no response had been received to the letter of 6 August 2012 the Respondent concluded that the Applicant had abandoned his employment. 8 This letter was sent by email and registered post. Mr Esprit produced the registered post lodgement and delivery receipts for the registered mail.9 Neither the letter nor email was returned as not delivered.

[18] Each of the letters of 6 and 14 August 2012 were also sent by the Respondent’s solicitor to the Applicant’s solicitor at Max Legal. 10 No reply was received from the Applicant’s legal representative.

[19] Mr Molnar for the Respondent submits that the matter to be determined is whether or not the Applicant was dismissed by the Respondent. He says that this is a case of abandonment of employment.

[20] The evidence shows that Mr Olsen was expected to attend at the office on 6 August 2012. He did not come to the office and, on his evidence, did not attend work on or after 6 August 2012.

[21] When the employer contacted him by mail and email on 6 August 2012 the Applicant failed to reply. Even if the Applicant did not receive the letter of 6 August 2012 Mr Molnar says this is not fatal to the claim that the Applicant abandoned his employment because on any view the Applicant did not attend work on and from 6 August 2012.

[22] In Norman v Transport Accident Commission 11 Whelan C (as she was then) found that the Applicant

has not identified (save for the employer’s advice that his employment contract was terminated) 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 to an end. 12

[23] Mr Molnar submits that the reasoning of Whelan C holds in this matter. In this case Mr Olsen has failed to identify any action on the part of the Respondent which was intended to bring his employment to an end. Whilst the Applicant, through his solicitor, was engaged in negotiations to finalise terms on which he would leave the company there was nothing in those negotiations that suggested any authority for the Applicant to not attend work.

The Applicant

[24] Mr Olsen made some statements from the witness box under oath. In an attempt to gain information that might assist me in the resolution of the matter I attempt to elicit, through some direct questioning, relevant information from the Applicant.

[25] The Applicant says he was engaged in discussions with the Respondent on the details of a package that would see him depart the Company. The offer made to the Applicant was not satisfactory to him but when he went back to the Respondent and requested a larger payment ‘no-one was prepared to deal.’ 13 During this period the Applicant’s solicitor Terry McHugh was involved in the negotiations with the Respondent. The Applicant says that Mr McHugh corresponded with Saniflo with a counter offer to settle the matter. This offer contained a statement that said that the ‘amount [is] to be paid within 21 days of return of signed deed to your client. We look forward to your response.’14 In his written submission the Applicant states that his solicitor advised him to take leave. The Applicant suggests that this was implied in the correspondence from Mr McHugh. The Applicant says that Mr McHugh, by this statement to the Respondent, was alluding to the fact that the Applicant would be using 21 days of annual leave.

[26] Whilst the Applicant claims that he never had to have leave forms signed in the past, he does agree that he had not sought nor had any leave approved during the period in question.

[27] The Applicant could not produce any material on which he could base his claim that, prior to the receipt of the letter of 14 August 2012 he believed that his employment had been terminated. The Applicant was in discussion with the Respondent about terms of an agreed separation from the Respondent but this was not finalised on 6 August 2012 when he failed to attend work for a meeting with Mr Esprit.

[28] The Applicant says he did not receive the letter of 6 August 2012 15 although in his submission to the Commission with respect to the jurisdiction objection he does say that he received a letter from the Respondent threatening dismissal and then, days later, received a letter of dismissal.16 Mr Olsen however does not accept that in responding to the Respondent’s threat of dismissal he was responding to the letter of 6 August 2012.

[29] The Applicant admits that he did not return to work at any time on or after 6 August 2012.

[30] The Applicant says he did receive the letter of 14 August 2012. He did not contact the Respondent to contest the contents of the letter because he said, ‘there wasn’t really a mistake.’ 17

[31] The Applicant agrees that he received the letter from Mr Esprit dated 23 July 2012. 18

[32] The Applicant agrees that he could access his emails away from the office. 19

The Law

[33] The Act provides:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[34] 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.

[35] If it is the case the Mr Olsen has not been dismissed he cannot claim that he has been unfairly dismissed. There would, in those circumstances, be no jurisdiction for the Commission to hear the application he has made under s.394 of the Act.

[36] Saniflo do not say that the Mr Olsen resigned - willingly or otherwise - but rather that he abandoned his employment.

Consideration

[37] In determining if the Applicant did abandon his employment or resigned or was forced to resign from his employment, because of conduct, or a course of conduct, engaged in by his employer it is necessary to consider the facts and circumstances surrounding him leaving his employment.

[38] In assessing the circumstances surrounding the Applicant’s separation from the Respondent I prefer the evidence of Mr Esprit to that of Mr Olsen. I do not find Mr Olsen’s evidence reliable. He made a range of assertions, under oath, none of which he could support with any factual material. He claimed not to have received correspondence that was both emailed and mailed to him. Whilst repeatedly asked on what basis he said the Respondent had terminated his employment, apart for the final letter of 14 August 2012, Mr Olsen could provide nothing to assist his claim. Mr Olsen was at times belligerent which did not assist his case.

[39] Mr Esprit on the other hand was clear in his recollections and provided evidence to support his statements. I find Mr Esprit to be a witness of truth.

[40] I accept the evidence of Mr Esprit that on 23 July 2012 he sent a letter to Mr Olsen requesting an explanation as to Mr Olsen’s failure to provide some work reports as required. I find that Mr Olsen received this letter by email. Whilst in his reply he says he did not have access to his email account until 23 July 2012 this does not explain why he did not see the letter until 25 July 2012.

[41] Whilst Mr Olsen says in his email of 25 July 2012 that he thinks it best if he remains on annual leave, I find that at no time did he seek or have approved any annual leave for the period in question. The statement by his solicitor that the ‘amount to be paid within 21 days of return of signed deed to your client’ in the context of negotiations over a separation agreement is not an indication that the Mr Olsen would be on leave for the next 21 days. It is no more than a proposed clause in an agreement.

[42] I accept the evidence of Mr Esprit and therefore find that Mr Olsen was aware that he was to attend a meeting at the Respondent’s office on 6 August 2012. I also find that the Applicant failed to attend that meeting.

[43] I find that on 6 August 2012 the Respondent did send a letter to the Applicant to both his email and postal address in which it was clear that the Applicant was required to return to the workplace and resume his duties and that he was told that if he failed to return to work he may be considered to have abandoned his employment. I also find that a copy of the letter was sent to the Applicant’s solicitor.

[44] I do not accept that, having been sent to the usual addresses, the letter was not received.

[45] The email address used by the Respondent to correspond with the Applicant is the same email address the Applicant during his employment. It was also used by the Applicant for some period after his employment ended on 14 August 2012 to send what can only be described, at best, as offensive and intimidating emails to the solicitors for the Respondent in November and December 2012. 20

[46] I find that neither the Applicant nor his solicitor responded to the letter of 6 August 2012.

[47] As a consequence on 14 August 2012 Saniflo sent a letter to Mr Olsen advising that it had concluded he had abandoned his employment. I find, on the basis of the evidence, that Mr Olsen took no steps to disabuse the Respondent of the conclusion it had reached.

[48] There is no doubt that Mr Olsen had been engaged in discussions with the Respondent for some time over the terms on which he would leave the company. That he was not able to satisfactorily resolve that matter does not give him defensible grounds to proceed on unauthorised leave and not return to his place of work when he was requested to.

[49] Even if I am wrong on this point and Mr Olsen did not receive the letter of 6 August 2012 I find that he took no steps to contest the conclusion in the letter of 14 August 2012 that he had abandoned his employment.

[50] In all of these circumstances I find that the Applicant was not dismissed and nor was he forced to resign because of conduct, or a course of conduct, engaged in by his employer. Mr Olsen has not identified any course of action by his employer that forced him to resign and, in any event, he at no stage told his employer that he had resigned. I find that Mr Olsen abandoned his employment in that he failed to return to work or resume work from 6 August 2012.

[51] In all of the circumstances I find the jurisdiction objection of the Respondent upheld. The Applicant was not dismissed and the Commission has no jurisdiction to deal with the matter. An order dismissing the application for relief from unfair dismissal will be issued in conjunction with these reasons for decision.

COMMISSIONER

Appearances:

K. Olsen, Applicant

C. Molnar, solicitor for the Respondent

Hearing details:

2013.

Melbourne.

15 February.

 1   Transcript PN68.

 2   Exhibit S1, attachment B.

 3   Exhibit S1, attachment C.

 4   Exhibit S2.

 5   Transcript PN76-7.

 6   Exhibit S1, attachment D.

 7   Transcript PN90.

 8   Exhibit S1, attachment F.

 9   Exhibit S3.

 10   Exhibit S1, attachment E and G.

 11   [2010] FWA 3549.

 12   [2010] FWA 3549, [46].

 13   Transcript PN152.

 14   Transcript PN156.

 15   Transcript PN244-7.

 16   Transcript PN 251-7. See also exhibit S4, page 3.

 17   Transcript PN183.

 18   Transcript PN230.

 19   Transcript PN236-7.

 20   See exhibits S5, S6, and S7.

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