Liquor Hospitality & Miscellaneous Workers Union v Video City Pty Ltd - [2010] FMCA 692

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIQUOR HOSPITALITY & MISCELLANEOUS WORKERS UNION v VIDEO CITY PTY LTD

[2010] FMCA 692

INDUSTRIAL LAW – Whether abandonment of employment.

Workplace Relations Act 1996 (Cth)
Fairwork (Transitional Provisions and Consequential Amendments) Act 2009

Fletcher & Gambier Hotel Pty Ltd (2000) SAIRCOMM 64
Loughridge v Lavery (1969) VR 912
Mersey Steel & Iron Co v. Naylor, Benzon & Co (1884) 9 App Case 434
Pertini v Automotive Foods, Metals and Engineering Union IRC of SA No.66 of 1995
Boyd v Godfrey Hurst No. VI 246 of 1994, VI 247 of 1994
Maan v Swift Australia (Southern) Pty Ltd [2010] FMCA 136

Applicant:

LIQUOR HOSPITALITY & MISCELLANEOUS WORKERS UNION

Respondent:

CLASSIC VIDEO PTY LTD T/AS VIDEO CITY (ACN 009 533 715)

File Number:

LNG 2 of 2010

Judgment of:

Baker FM

Hearing dates:

9 & 30 July 2010, 19 & 31 August 2010

Date of Last Submission:

31 August 2010

Delivered at:

Hobart

Delivered on:

9 September 2010

REPRESENTATION

Counsel for the Applicant:

Ms Mackey

Solicitors for the Applicant:

Dobson Mitchell & Allport

Counsel for the Respondent:

Ms Jeschke

Solicitors for the Respondent:

Ogilvie Jennings

ORDERS

There be judgment for the Applicant on the claim in the amount of $3,272.74.
There be judgment for the Respondent on the cross-claim in the amount of $126.25.
The issue of costs be reserved.
The issue of costs be adjourned to 10.00am on Tuesday 2 November 2010 before Federal Magistrate Baker.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

LNG 2 of 2010

LIQUOR HOSPITALITY & MISCELLANEOUS WORKERS UNION

Applicant

And

CLASSIC VIDEO PTY LTD T/AS VIDEO CITY (ACN 009 533 715)

Respondent

REASONS FOR JUDGMENT

This is an application by Liquor Hospitality and Miscellaneous Workers Union (“the Union”) against Classic Video Pty Ltd trading as Video City (“Video City”) on behalf of a union member and former employee of Video City, Ms Carmen Smith (“Ms Smith”), for unpaid annual leave and loading, unpaid pay or pay in lieu of notice.
It is not disputed that the Union is an employee organisation within the meaning of Workplace Relations Act 1996 (“the Act”) and is entitled to institute the proceedings against Video City. The Act applies in this matter as the relevant conduct occurred before the repeal day of the Act, that day being 1 July 2009. [1]
[1] Item 11 of schedule 2 to the Fairwork (Transitional Provisions and Consequential Amendments) Act 2009
From 15 September 2006 until June 2008 Ms Smith was employed by Video City as a library attendant under an Australian Workplace Agreement (AWA). In its Statement Of Claim, the Union claims that on about 20 June 2008 Ms Smith gave two weeks’ notice of her resignation of employment to Video City and she intended to work out her period of notice. The Union claims that subsequently Video City terminated Ms Smith’s employment as at 25 June 2008 and from approximately that date, Video City has failed to pay Ms Smith’s wage, and/or payment in lieu of notice, and/or annual leave and/or annual leave loading in breach of the Australian Fair Pay and Conditions Standard and s.661 of the Act.
In its Defence, Video City denies that it has a liability to make any payment in lieu of notice because Ms Smith abandoned her employment and Video City did not terminate her employment.
The Union and Video City have agreed the amount claimed by Ms Smith if she is successful. The Particulars of Loss Claimed dated 7 July 2010 indicate that the amount is made up as follows:
·Wage for hours worked and unpaid         $341.00
·Notice paid in lieu (Clause 31 AWA)       $1,178.00
·Superannuation for wage and notice       $136.71
·Accrued annual leave (Australian Fair Pay and Conditions Standard-s232)   $1,351.71
·Interest  $265.32
Total  $3,272.74
There is a counter-claim by Video City for reimbursement of excess video library usage pursuant to cl.13 of the AWA. This was not disputed and its amount is agreed in the sum of $126.25.

Law

A repudiation of an employment contract will exist either when there is a breach of a condition going to the essence of the contract or when one of the parties has evinced an intention through her or his conduct, either express or by implication, to no longer to be bound by the contract. The evinced intention of the employee must be clear before the employer is entitled to regard the employee’s actions as grounds for treating the contract at an end. Whether there has been a repudiation of the contract is a question of fact. When considering words or conduct by implication, the relevant intention is not the subjective intent of the employee; rather, it is the employee’s intent as reasonably inferred by the employer, communicated to the employer by the employee’s words or conduct.[2]
[2] Loughridge v Lavery (1969) VR 912 at 923
Counsel for the Union relied on the authority of Fletcher & Gambier Hotel Pty Ltd[3]. That case cites with approval the principle outlined in Mersey Steel & Iron Co v. Naylor, Benzon & Co[4], in which Lord Selbourne states that one must examine the:
…actual circumstances of the case in order to see whether one party to the contract is relieved from its future performance by the conduct of the other; you must examine what the conduct is, so as to see whether it amounts to renunciation, to an absolute refusal to perform the contract, such as would amount to a rescission if he had the power to rescind, and whether the other may accept it as a reason for not performing his part…[5]
[3] (2000) SAIRCOMM 64
[4] (1884) 9 App Case 434
[5] Ibid at 438
Counsel for the Union also relied on the authority of Pertini v Automotive Foods, Metals and Engineering Union[6]. In that case Commissioner Huxter refers to the approach adopted by Staindl J. R. of the Industrial Relations Court of Australia in Boyd v Godfrey Hurst[7] where he states:
For an employee to abandon his/her employment it must be clear that the employee has evinced an intention to no longer be bound by the terms of the contract of employment.
[6] IRC of SA No. 66 of 1995, at page 11
[7] No. VI 246 of 1994, VI 247 of 1994
Counsel for Video City relied on the authority of Maan v Swift Australia (Southern) Pty Ltd[8], a decision of Burchardt FM, who found that Mr Maan had left his employment before the end of his shift without notification or authorisation. His Honour found that his employment came to an end because the employer accepted what it had perceived as the abandonment of the contract by Mr Mann. The facts of that case can be distinguished from the findings of fact I make in this case. Burchardt FM found that that Mr Maan left his place of employment and did not work his afternoon shift. His version of the evidence that he was present at work that afternoon was not accepted. He was not ill. He did not notify his supervisor before he left early.
[8] [2010]FMCA136

Evidence

The Union relied on the following documents:
·Affidavit of Carmen Marie Smith filed 2 July 2010.
·Affidavit of Peter Reginald Smith filed 1 July 2010.
·Affidavit of Lesley June Smith filed 1 July 2010.
·Written submissions filed 23 August 2010
Video City relied on the following document:
·Affidavit of Terrence Ewing filed 7 July 2010.
·Written submissions filed 25 August 2010.
No objections were made to any of the evidence contained in the affidavits, including a diary note annexed to Mr Ewing’s affidavit, which he deposed was made by Ms Daleleen Smith, who is deceased.
All four witnesses were cross-examined.
I raised with Counsel whether there is an inconsistency in the Statement of Claim between the claim that Ms Smith gave two weeks’ notice of her resignation and the claim that Mr Ewing then terminated her employment. Counsel for the Union submitted that there is no inconsistency. The contract of employment continued until the period of notice had expired. Before it expired Ms Smith was prevented from performing her duties of employment on or about 24 and 25 June 2008 and the actions of Video City were actions in breach of the contract of employment and by such unlawfully terminated that contract.
Counsel for Video City also submitted that there is no consistency in the claims if the Court finds that Ms Smith resigned from her employment on 20 June 2008 and intended to work her two weeks’ notice up until 4 July 2008, but was terminated by Video City the following week.
The Union filed an Application in a Case on 26 August 2010 seeking amendments to the Statement of Claim. It sought compensation pursuant to ss.719 (6), 718 (8) and 320 of the Act in respect of the failure to pay wages, superannuation, accrued annual leave, a further civil penalty pursuant to s.719 and interest pursuant to s.322 of the Act. These amendments were sought in the event that the Court found Ms Smith resigned from her employment and her employment was not terminated by Video City. The Application was opposed by Video City. I do not need to make any findings about this Application due to reasons to follow.

Evidence of Ms Smith

On 15 September 2006 Ms Smith commenced full-time employment with Video City as a library assistant for 38 hours per week on a rotating roster. She principally worked at the Mowbray library. The manager of Video City was Mr Terry Ewing. Ms Daleleen Smith (“Daleleen”) was regional manager for the North and the North-West Coast and worked from Devonport.
In approximately mid July 2007 a greengrocer moved into premises adjacent to the Mowbray library. Subsequently, an unpleasant odour began to manifest within the library. Ms Smith became concerned about the occupational health and safety consequences of that smell. She annexed to her affidavit numerous emails, sent between 16 July 2007 and February 2008 to supervisors and to Mr Ewing about the smell. Subsequently, an inspector from Workplace Standards attended the workplace to undertake an inspection. Following this, Ms Smith received an email from Mr Ewing. It was a two pages long, dated

1 May 2008 and sent to all the staff. In it he said:
“…yes some discomfort may have been experienced by the staff (but hey, I did not hear a word from any staff member) as customers and the plumbers tracked and sealed the pipe line. This meant a change in the arrangements in using the toilets at MBY but again the staff said nothing to the regional manager or myself. Instead the staff member decided to call to Workplace Standards – could only of come from a staff member at MBY – I am not sure what you thought you would gain from such a call. The act of seeking redress from the department without making further and fuller enquiries with the regional manager or myself, frankly, disappoints me. As previously mentioned, I had resigned to closing the library, following Ms Smith’s claim the smells were dissipating. I really had no option and I was aware of this. Had it not been for the perseverance of the landlord and his determination to find the problem and a suitable solution some of you would have been looking for jobs today. I have endeavoured to operate a library in MBY in a very competitive environment. I really thought we were all on the same side. I think the landlord would be disappointed if he was to hear the above events.
… I will now go home and think about this sorry saga and people’s lack of confidence in the company and it’s preparedness to tackle problems.”
Ms Smith deposed that she believed she was treated differently by Mr Ewing and Daleleen after the Workplace Standards inspection. She said that they treated her coldly, abruptly and rudely, and that at times Mr Ewing was abusive towards her. On 7 May 2008 Ms Smith sent another email to Daleleen about the smell.
After Ms Smith sent this email, Mr Ewing came to the library. He accused her of “dobbing him in” to Workplace Standards. He told her that she was “a low life”, and that he would shut the library down. He said that there was nothing he could do about the smell and that if he shut the library down, people would lose their jobs. He told her that she was being transferred. Ms Smith became ill as a result of this exchange. She saw her general practitioner the next day. He provided her with a medical certificate, indicating a four day illness. While Ms Smith was absent from work she was informed that she was being transferred from the Mowbray library to the Bathurst Street library. She worked at the Bathurst Street library over a period of months, without any difficulties.
On 19 June 2008 Ms Smith was rostered to work a 1.00 p.m. to 9.00 p.m. shift. Also working that day were two other employees; Amy Olsen (“Amy”) and Chris, both of whom were supervisors. Ms Smith had her lunch break between 4:00 p.m. and 5:00 p.m. that day. During the break, Daleleen told Ms Smith that she would be transferred to the Newstead library the following week, for the week.
After the break, Ms Smith returned to work. She was angry about the transfer to the Newstead library. Ms Smith went to the toilet, and then outside, in order to compose herself. She telephoned her mother and told her that she had a ‘gutful’, that they were playing games with her and that she was being transferred to the Newstead library. She went to the toilet again and vomited. She noticed that there was vomit on her badge, so she took it off, wiped it clean and put it on a bench in the office. She then returned to work. Ms Smith was challenged about having vomited and having taken her badge off to clean it. Her evidence was not shaken.
Ms Smith then telephoned her father. She asked him to collect her, as she was feeling sick. She then told Chris that her stomach was hurting, that she was going home and was not feeling well. She could not clearly recall logging off the computer. She left her badge and the keys to the Bathurst Street library in the office. She was picked up by her father at approximately 8:00 p.m. When she arrived home, at approximately 8:30 p.m., she asked her mother to telephone Daleleen. She heard her mother call Daleleen and heard her mother say that she was ringing for Ms Smith, who was not well and was going to the doctor the next day.
On 20 June 2008 Ms Smith went to the doctor. She was rostered to work from 10:00 a.m. until 7:00 p.m. that day. She believed that the staff at the Bathurst Street library and Daleleen knew that she would not be at work, because she had left work unwell the previous night and was going to the doctor. The doctor gave her a medical certificate for 20 and 21 June 2008.[9]
[9] Annexure “Y” to Ms Smith’s affidavit
When Ms Smith arrived home from the doctor’s rooms she telephoned Amy and told her that she had been to the doctor. Amy was not rostered to work that day.
At about 12:45 p.m. on 20 June 2008 Ms Smith telephoned the Mowbray library to speak to the supervisor, Lindy, but she was not at work that day. She then called the Bathurst Street library. The supervisor was at lunch, so she called her mobile telephone number and the telephone rang out.
Ms Smith then telephoned Daleleen and told her that she was sick and had a medical certificate for two days off work. She also told Daleleen that she would be back at work at the Newstead library on Wednesday 25 June 2008, her next rostered day following the two days sick leave. She told Daleleen that she had a ‘gutful’ and that she was giving two weeks’ notice of her resignation. A medical entry of Dr Peter Davies dated 20 June 2008 indicated that Ms Smith was suffering from vomiting and diarrhoea and medical certificate for two days was provided to her. [10]
[10] Annexure “FF” to Ms Smith’s affidavit.
Ms Smith deposed that she had no intention of resigning until she received a text message from Amy on 20 June 2008 indicating that she had been called into work, had been practically fired and did not want to see Ms Smith anymore. This had upset her. Her intention was to take the medical certificate to work on Wednesday 25 June 2008 and to put it in the mail to be processed for her pay. She did not believe that it was necessary to provide it any earlier, as she was not due to be paid until the following fortnight.
During cross-examination Ms Smith said that she did not tell Mr Ewing she was ill on 19 June 2008 because he was not in the library. She told Chris and showed him her distended stomach. She was not challenged about this.
During cross-examination, Ms Smith was asked about Video City’s policy for reporting sickness. Her evidence was that the sick employee had to notify a supervisor; and that whenever she had been sick she had always telephoned a supervisor, Lindy. She said that she telephoned Daleleen on 20 June 2008 because she was unable to contact a supervisor and Daleleen was the person she had to telephone if that occurred. It was put to Ms Smith that she had not told Daleleen that she was having two days off work. Ms Smith disagreed with this.
The telephone records of Ms Smith’s parents indicate that on 20 June 2008, telephone calls were made to the Mowbray library at 12:42 p.m., the Bathurst Street library at 12:40 p.m. and the Devonport library at 12:46 p.m.
On Wednesday 25 June 2008 Ms Smith was due to start work at 1:00 p.m. She telephoned an employee, Jude, at approximately 9:50 a.m. to ask if she was to come to work and was subsequently told that she was not welcome back. She then tried to speak to Mr Ewing that morning, but he did not answer his mobile telephone.
Ms Smith deposed that when her father came home at lunch time on

25 June 2008, he telephoned Mr Ewing and asked him why Ms Smith was not allowed back to work. He then handed the telephone to Ms Smith. Mr Ewing told her that she was not sick, and that she had not told anyone that she was going to be absent. Ms Smith told him that she had phone records to prove that she had in fact done so. Mr Ewing then yelled at her, and said that “she could talk about phone records; he just got the bill for all the bloody phone calls made to her mobile phone by staff, which were costing him heaps of money.” Ms Smith told him that if staff members were better trained, and the supervisors were not so nasty, staff would not be calling her all the time to sort out their problems. She then asked whether, after all the hard work she had put in for him, this was the way he was treating her. She said he was, “…a horrible, evil man and karma was going to come back bite him in the arse.” He replied that it was a good thing that she was not working at Video City any more.
During this conversation Mr Ewing told Ms Smith that he had sent a letter to her, and that she should see her union with it. She informed him she had not received a letter. On 8 July 2008 Ms Smith received a letter from Video City enclosing the letter which was dated 23 June 2008 and which Mr Ewing had told her he had sent. That letter states:
“I write to advise you the company believes you have abandoned your employment following your unexplained absence from work on Saturday 21 June 2008. It is noted no explanation was provided to anyone at the company …I note you have resigned your position with the company on Friday 20 June following your early departure from work the previous evening…the company holds the view your actions indicated your desire to abandon your employment and we will record your exit from the company as such. Your last date of employment was Friday 20 June 2008...”
On 24 June 2008 Mr Ewing sent an email to his staff, indicating that Ms Smith had left the company. On 25 June 2008 Mr Ewing sent another email to the staff. That email reads as follows:
“Last night I informed you all that staff changes have occurred.

I did not disclose the reasoning behind the changes as I considered it was not the appropriate time nor method to discuss such changes save for the fact you ought to know changes had occurred. No sooner had I informed you, a staff member immediately called one of the ex staff members and proceeded to discuss her departure from the company.
An ex staff member rang this office this morning to inform me how slack the staff in Launceston are and how incompetent the supervisors are. In fact she went on to say if it was not for her work the company in Launceston would be in a poor state.
I make no judgment as this was her opinion of YOU not me.
I thought the comments ought to be shared with you – after all there is no doubt about how you may be considered by some.
As often – if the cap fits…”
Mr Ewing was cross-examined about this letter. I discuss this later in these Reasons.

During cross-examination Ms Smith said she thought that, as an employer, Mr Ewing was a little harsh at times, but with reason. She got on well with him and Daleleen, but they treated her differently after the Workplace Standards inspection. On 7 May 2008 she and Mr Ewing had words, but she thought that Mr Ewing believed her when she told him that she had not made the complaint to Workplace Standards.
Ms Smith said that she loved her customers, who were loyal and nice people. She liked her job. Ms Smith did not know why she was transferred to the Newstead library from the Bathurst Street library. She thought it may have been because she and Amy were friends, but she was not given a reason and did not ask.
Ms Smith felt unhappy, angry and sick on 19 June 2008. She was emotional because she was sick of being transferred and sick of Mr Ewing being rude to her. She said “I wasn’t thinking 100% that I didn’t want to be in the job. I wasn’t completely over it. The job has had its good points.” Although Ms Smith felt this way and had left her badge and keys at her place of employment that day, she said she was not well and had vomited. She had told Chris that she was sick. On that evening she asked her mother to telephone Daleleen to inform her that she was going to the doctor the next day. Ms Smith was not challenged about telling Chris that she was sick. It was not disputed by Mr Ewing that Mrs Smith telephoned Daleleen.

Evidence of Mrs Smith

Mrs Smith deposed that she was aware of the problems her daughter was experiencing at the Mowbray library about a smell. Due to her concern, and without Ms Smith’s knowledge, she contacted Workplace Standards.
On the night of 19 June 2008 Mrs Smith was at home. She received a telephone call from Ms Smith sometime between 7:00 p.m. and 7:30 p.m. Ms Smith told her that she was not feeling well, and that she was upset. Following that call, Mr Smith collected Ms Smith. When they arrived home, Ms Smith told Mrs Smith that she had vomited at work. Ms Smith did not want to talk to Daleleen, so Mrs Smith telephoned her on Ms Smith’s behalf that evening. She told Daleleen that Ms Smith was unwell and had been vomiting, that she was going to the doctor the next day and that they would call to let her know what was happening.
Mrs Smith’s evidence was credible and was not challenged. She was not cross-examined about her conversation with Daleleen. I accept her evidence.

Evidence of Mr Smith

Mr Smith deposed that on 19 June 2008, at approximately 7:45 p.m., he received a telephone call from his daughter, Ms Smith. She told him that she was unwell, and that she wanted to come home early. When he arrived at the library she was waiting outside for him. She went to the car whilst he went into the library to return some DVDs. Chris approached him. Mr Smith told Chris that Ms Smith was not well, he was taking her home and he would get back to him. Mr Smith was not challenged about this conversation.
When they arrived home Mr Smith heard his wife telephone Daleleen and tell her that Ms Smith was not well and that she would be taking her to the doctor. She said that she would get back to Daleleen to let her know what was happening. Mr Smith was not challenged about this evidence
Mr Smith deposed that he had two telephone conversations with Mr Ewing. The first conversation was on Friday night when he believed he had terminated the employment of his daughter and Amy. He called Mr Ewing “a fucking gutless prick for sacking two good workers.” He then telephoned him on 25 June 2008 and asked him what was happening with his daughter’s employment. He handed the telephone to Ms Smith when Mr Ewing would not speak to him.
Mr Smith was a credible witness, whose evidence was not challenged.

I accept his evidence.

Mr Ewing’s evidence

Mr Ewing deposed that in or around July 2007 Ms Smith raised a concern about a smell at the Mowbray library. He acted on her concerns and arranged for the landlord to fix the library. An inspector from Workplace Standards then visited the Mowbray library after receiving an anonymous complaint.
Ms Smith was finding it difficult to work in the Mowbray library so he asked her to move to the Bathurst Street library. Her supervisor there was Amy, who was Ms Smith’s friend.
On 19 and 20 June 2008 he visited the Launceston area to review the operations of the four libraries located in that area. He also met with the regional manager, Daleleen Smith. Daleleen and Mr Ewing spoke to Amy about her working relationship with Ms Smith. Following the meeting he asked Daleleen to speak to Ms Smith about moving to another library, and they decided upon the Newstead library as the most appropriate. Ms Smith would finish the Bathurst Street library roster and work 19, 20 and 21 June 2008 there. The move to the Newstead library would take place on Monday, and her first shift would be on Wednesday.
Mr Ewing deposed that he has a vivid recollection of the events of

19 June 2008 from 7:30 p.m. He asked staff where Ms Smith was. They told him that she had gone outside to talk to Amy. Mr Ewing went outside and saw Ms Smith’s badge and the entrance keys to the library sitting on the kitchen table in the staff room. At the time, he thought this was odd, as staff members always take their key and badges home at the end of a shift. Ms Smith still had two shifts left at the Bathurst Street library, on Friday and Saturday, so she would have needed her keys then.
Mr Ewing returned to the service counter at the library and asked for Ms Smith. Nobody could inform him of her whereabouts. During cross-examination he could not recall the names of the staff he asked and agreed that he could have identified who they were by looking at the company records. He had not done this.
Mr Ewing checked the computer system at around 7:45 p.m. to ascertain whether Ms Smith had logged off. He saw that she had logged off at 7:25 p.m. and that no reason was provided. As to the policy of logging off the computer at the end of the shift, he said that there is no formal policy
He deposed that Daleleen telephoned him on the evening of 19 June 2008 to say that she had spoken to Ms Smith’s mother. He told Daleleen that he would speak to Amy the next day. He spoke to Amy on the morning of 20 June 2008. Amy thought Ms Smith was fine, and could not shed any light on the matter. Amy then said she wanted to resign. He said during cross-examination that speaking to Amy was the only action he took in response to Ms Smith’s disappearance.
During cross-examination, Mr Ewing did not mention that he had spoken with Daleleen about her conversation with Ms Smith’s mother on the evening of 19 June 2008. When Mr Ewing was asked about this telephone call, he said that he was not present when the call was made. He did not know about this conversation on 19 June 2008 and said,

“I know about it now after reading Daleleen’s notes, I didn’t know at that time.”
Mr Ewing was referred by me to paragraph 19 of his affidavit. After he read it he said, “I must have been aware.” Mr Ewing was asked whether he knew on 19 June 2008 that Ms Smith had vomited. His answer was that he could not recall the contents of the conversation with Daleleen. He said:
“I just said to Daleleen, I will speak to Amy about Ms Smith. I must have left it at that. I can’t recall the contents… Sorry, I’ve lost track here.”
Mr Ewing was not able to remember the conversation he had with Daleleen, although he had deposed that he had a vivid recollection of the events to follow after 7:30 p.m. on the evening of 19 June 2008. Mr Ewing had been sent an email from Daleleen on 20 June 2008 informing him that Ms Smith had been to the doctor that day, that she had gastroenteritis and that she was giving two weeks’ notice. When asked about the email, he said he could not recall seeing it, although he did not doubt that he did receive it.
Mr Ewing deposed that it was Video City policy that when a staff member was sick, he or she was to telephone the supervisor at the library where he or she was working. An email to staff from Daleleen dated 6 June 2008 stated that Launceston staff members were to ring Lindy, Chris, Amy or Jude if unable to complete a shift due to sickness. Daleleen was also to be contacted. Mr Ewing said that employees are required to provide a medical certificate if absent from work for illness. It is often provided when the employee returns to work because there are forms to complete. He said that it is sufficient notice to telephone a supervisor.
He deposed that he was not aware that Ms Smith advised Amy, or any of the assistant supervisors, that she could not work on 20 June 2008. Ms Smith did not turn up for work on 21 June 2008. Mr Ewing deposed that he was not aware of Ms Smith advising Amy or any of the assistant supervisors that she could not work on 21 June 2008. He said that they did not hear from Ms Smith on 22 June 2008.
Mr Ewing deposed that on Monday 23 June 2008 he was firmly of the view that Ms Smith did not ever intend to return to work. The reasons he gave were, that on 19 June 2008 she had left work early, leaving her keys and badge, and she did not turn up for work on 20 or 21 June 2008 despite being rostered to do so. She did not notify Amy or any assistant supervisors at the Bathurst Street library that she could not work on 20 or 21 June 2008. She had not provided the company with a medical certificate. She did not contact the company on 22 June 2008, nor had she provided a resignation in writing. As a result, he wrote to Ms Smith on 23 June 2008.
During cross-examination he said:
“My opinion is that Ms Smith walked out on Thursday evening.

I had the view that since she failed to communicate, she had no intention of returning. I waited until Thursday but heard nothing. I came to the conclusion on 24 June 2008 that she had abandoned her employment”
On 24 June 2008 Mr Ewing advised the staff there had been staff changes and that Ms Smith had left the company.
On 25 June 2008 he received an email from Daleleen stating that Ms Smith’s claim, that she had told Daleleen she would be absent on Friday and Saturday and she had a certificate to cover both days, was untrue.
On 25 June 2008 after Mr Smith telephoned Mr Ewing, he then spoke to Ms Smith. He told her that she had not called any of the supervisors at the Bathurst Street library to explain her absenteeism and she had not provided a medical certificate. He deposed that Ms Smith did not offer to work out her notice period. He requested that she provide a medical certificate, as he did not believe she had been sick for the two days in question. The medical certificate was never received.
Mr Ewing was asked about the telephone conversation he had with Ms Smith on 25 June 2008. He could recall telling Ms Smith that he did not believe she was sick. He could not recall Ms Smith telling him that she had telephone records to prove that she had contacted work. He could not recall saying that he had received the bill for the telephone calls made by his staff to her mobile telephone. He could not recall Ms Smith telling him, that if staff was better trained and the supervisors were not so nasty, they would not be calling her all the time to sort out their problems.
When he was asked whether he agreed that the conversation as recalled by Ms Smith in respect of the staff and their calls to her, was consistent with the content of his email to staff on 25 June 2008 his answer was, “if you wish to draw that conclusion you can, I don’t.” He could not recall why he stated in the email, “I make no judgment as this was her opinion of YOU not me.” His explanation for the email was that he thought he would share with the staff some of the things happening in the North. Mr Ewing said that he did not know which one of three employees he was referring to in the email.
Mr Ewing’s evidence was that he did not know that he was referring to Ms Smith in his email of 25 June 2008. However, Ms Smith’s version of the conversation about the staff and their calls to her accords with the content of his email. She said that the conversation took place at lunch time on 25 June 2008. Mr Ewing’s email of 25 June 2008 was sent to staff at 12:29 p.m. I accept Ms Smith’s evidence about the telephone conversation with Mr Ewing on 25 June 2008.
During cross-examination Mr Ewing conceded that he thought Ms Smith had made the complaint about the smell at the Mowbray library to Workplace Standards. This disappointed him. When asked about his email dated 1 May 2008 to staff about the issue, he said he believed that it was a reasonable manner in which to communicate with his staff. He denied that he called Ms Smith a “low-life”. He could not recall that Ms Smith has been off work with a medical certificate for four days. When he was asked about whether he was involved in the decision to move Ms Smith to the Newstead library he answered that he was not and said he could not recall the events of 18 June 2008. This conflicts with his affidavit evidence.[11]
[11] Para 13
Three exit forms were sent to Ms Smith. One form is blank, another form has the notification date as 20 June 2008 and the last day of work is blank, and the third form has 23 June 2008 as the notification date and the last day of work is unclear because it has been changed.
Mr Ewing could not explain why there were three exit forms. In his letter to Ms Smith dated 23 June 2008 he wrote that she resigned on

20 June 2008 and the last date of employment was 20 June 2008. He enclosed an exit form and asked her to complete it. It is more probable than not that this is the blank form which Ms Smith had in her possession. In his letter dated 8 July 2008 to Ms Smith Mr Ewing enclosed another exit form in the expectation that she would complete it. He urged her to complete the form. The exit form annexed to Mr Ewing’s affidavit has the notification date as 22 June 2008, her last day of employment as 19 June 2008 and includes a statement that she left her keys and badge on 19 June 2008.[12] Mr Ewing did not depose when that exit form had been completed, and there was no evidence that it had been sent to Ms Smith.
[12] Annexure “G” to Mr Ewings affidavit
A typed and unsigned file note was attached to Mr Ewing’s affidavit. Mr Ewing deposed that it was Daleleen’s file note. Daleleen has since passed away. It is a typewritten, undated and unsigned two page document. It refers to what occurred on 9, 19 and 20 June 2008. There is no indication of when the note was made. It does not appear to have been made contemporaneously with the events referred to. In the reference to
20 June, a history is given about Ms Smith’s issue with the smell at Mowbray and an explanation of why Ms Smith was moved. This had occurred in May 2008. Because Daleleen is deceased and the veracity of the note could not be tested little weight can be placed upon it.

Conclusion

I found Ms Smith to be a witness of truth. She was forthright, confident and unshaken during cross-examination. She was frank about conflict at work. Mr Ewing’s memory of what occurred on 19 June 2008 and on the days following was unreliable. He could recall some matters, and could not recall other matters. He could not recall two important conversations; one with Daleleen on 19 June 2008 and the other with Ms Smith on 25 June 2008. He could not recall the email sent by Daleleen to him on 20 June 2008 informing him that Ms Smith had been to the doctor, had gastroenteritis and had given two weeks’ notice. He could not recall which staff members he questioned on 19 June 2008 as to Ms Smith’s whereabouts. I prefer Ms Smith’s version of events to that of Mr Ewing.
I accept Ms Smith’s evidence that on 19 June 2008 she left work early unhappy, angry and sick. She left her badge and keys at her place of employment. However, she told Chris that she was sick, and her father told Chris that she was sick.
I find that after Ms Smith left work on the evening of 19 June 2008, Ms Smith’s mother told Daleleen that Ms Smith was unwell and was going to the doctor the next day. Ms Smith tried to communicate with her supervisors on 20 June 2008. These efforts are confirmed by her parents’ telephone records.
I find that on 20 June 2008 Ms Smith spoke to Daleleen, and gave two weeks’ notice of her resignation. She had “had a gutful”. She was upset about having been transferred to the Newstead library, she felt that she had been treated differently since the issue of the smell and she felt that Mr Ewing and Daleleen had been playing games with her. She told Daleleen that she would be at Newstead library on Wednesday

25 June 2008. Ms Smith’s action in obtaining a medical certificate on 20 June 2008 could have been for no purpose other than to provide it to her employer. I find that she intended to provide the medical certificate to Video City on her return to work on 25 June 2008 and she had the intention to work out her period of notice. On 25 June 2008 Mr Ewing told Ms Smith that she was not sick, that she had not told anyone that she was going to be absent and that it was good that she was not working with Video City any more. He told her to see her union with the letter that he had written to her. As a result, Ms Smith did not attend work on or after 25 June 2008.
The effect of Ms Smith giving two weeks’ notice of her intention to resign was that her contract of employment was still operating on

25 June 2008. Ms Smith did not provide notice in writing. It is not required to be in writing.[13] A valid notice of termination will operate according to its terms and the contract of employment will come to an end when the notice has expired or is due to expire.[14]
[13] Clause 31 AWA
[14] Macken, O’Grady, Sappideen, Warburton, Law of Employment (Law Book Co, 5^th Edition: 2002), page 176
The conduct referred to above is inconsistent with Ms Smith having evinced a clear intention to repudiate her contract of employment. Having regard to the whole of the evidence, I conclude that neither Ms Smith’s conduct nor anything she said amounted to abandonment of her employment.
Mr Ewing was of the view that Ms Smith had abandoned her employment when she left early and left her badge and keys at work on 19 June 2008, because it was the practice of staff to take their badges and keys home. Mr Ewing did not make any inquiry of Ms Smith about this. The only action he took was to speak with Amy the next day.
Mr Ewing was aware that on the evening of 19 June 2008 Ms Smith’s mother had telephoned Daleleen. He was aware that on 20 June 2008 Ms Smith had given two weeks’ notice of her resignation from her employment.[15] He had received an email from Daleleen on 20 June 2008 informing him that Ms Smith had been to the doctor that day, that she had gastroenteritis and that she was giving two weeks’ notice. His evidence was that if Ms Smith had provided a medical certificate all would have been resolved. When a certificate was not provided, he was firmly of the view on Monday 23 June 2008 that Ms Smith had abandoned her employment on 19 June 2008. However, it was the practice for Video City employees to provide medical certificates upon their return to work after being absent due to sickness.
[15] Letter dated 23 June 2008 from Mr Ewing to Ms Smith – annexure ‘F” Mr Ewing’s affidavit
I am of the view therefore, that it was not reasonable for Mr Ewing to infer that Ms Smith’s conduct clearly evinced an intention by her to abandon her employment. He was not entitled to regard Ms Smith’s conduct as grounds for treating the contract at an end.
Mr Ewing elected to accept what he thought was a repudiation of the contract by Ms Smith and intended to let her know that the contract was at an end. He wrote to Ms Smith on 23 June 2008 to inform her that she had abandoned her employment, although she did not receive that letter until sometime in July 2008. He had told the staff on 24 June 2008 that Ms Smith no longer worked with the company. He told Ms Smith on 25 June 2008 that it was a good thing that she had left the company. He told her she should see her union with his letter.

I find that the evidence justifies a finding that the actions of Video City were actions in breach of the contract of employment that was continuing and as such it unlawfully terminated that contract.
I find that in breach of s.232 of the Australian Fair Pay Conditions Standard and s.661 of the Act, Video City has failed to pay Ms Smith amounts claimed by her for wages and/or payment in lieu of notice and/or annual leave loading.
There will be judgment for the Union on the claim in the agreed sum of $3,272.74. There will be judgment for Video City in the agreed sum of $126.25.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Baker FM

Associate:

Date: 9 September 2010