Mathew Rowe v SA Trailer & Chassis Equip

[2021] FWC 2708

[2021] FWC 2708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mathew Rowe
v
SA Trailer & Chassis Equip
(C2021/1210)

COMMISSIONER PLATT ADELAIDE, 12 MAY 2021

Application to deal with contraventions involving dismissal – jurisdictional objection (no dismissal) – circumstances did not amount to abandonment of employment – applicant was dismissed

[1] On 4 March 2021, Mr Mathew Rowe lodged a general protections application against SA Trailer and Chassis Equip (SATC or the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 12 February 2021 he was dismissed in contravention of the general protections provision of the Act.

[2] On 16 March 2021, SATC filed a Form F8A Employer Response and raised a jurisdictional objection that Mr Rowe had abandoned his employment and thus was not dismissed.

[3] As a result of the decision in Coles Supply Chain Pty Ltd v Milford, 1 I am required to determine the jurisdictional objection before the matter can proceed.

[4] On 1 April 2021, the matter was allocated to me and on 8 April 2021, a Conference was held, and directions were issued for the filing of material. Mr Collinson (of Counsel) was granted permission pursuant to s.596(2)(a) on the basis of complexity and efficiency. Mr Rowe did not oppose the granting of permission.

[5] A Determinative Conference (so as to ameliorate the impact of the Respondent being represented by a lawyer) was conducted on 4 May 2021 by teleconference. Mr Rowe represented himself. SATC was represented by Mr Collinson.

[6] Mr Rowe gave evidence and submitted a witness statement dated 30 April 2021 2, a number of attachments, and a written submission.

[7] SATC submitted witness statements from Mr Robert Levai (General Manager) 3 and Mr Scott Moyle (Operations Manager).4 Both witnesses gave evidence.

[8] The facts are largely not in dispute and are summarised as follows.

[9] Mr Rowe is 39 years old and has the care of his 11-year-old son who suffers from attention deficit hyperactivity disorder (ADHD). As a result of this condition, Mr Rowe has carer responsibilities during school holidays and other occasions when his son is unable to attend for school.

[10] Mr Rowe commenced part time employment with SATC in 2017.

[11] In June 2019, Mr Moyle commenced working for the Respondent, and Mr Rowe’s contract of employment was changed to increase his hours to 25 per week.

[12] In April 2020, Mr Rowe suffered a compensable work injury to his wrist which impacted his work.

[13] In May 2020, Mr Rowe suffered from a seizure which resulted in his licence being revoked and a requirement for him to take medication.

[14] In November 2020, Mr Rowe consulted Dr Graham North (Staff Neurologist) at the Lyell McEwin Neurology Clinic.

[15] In January 2021, Mr Rowe saw Dr Sonia Suri from the Springbank Medical Centre. Dr Suri advised that Mr Rowe was being treated for depression and anxiety and was placed on a mental health plan.

[16] Mr Rowe contended that SATC was aware of his care needs for his son (particularly during school holidays) and his mental health challenges.

[17] Mr Rowe did not attend for work on a number of days prior to 16 December 2020. He last attended work on 17 December 2020 and did not attend again before his employment ceased on 12 February 2020. SATC was closed over the Christmas and New Year period, between 24 December and 4 January 2021.

[18] Mr Moyle managed Mr Rowe until mid-December 2020. Mr Moyle believed that Mr Rowe was unreliable and would often not communicate about his inability to attend for work. He and Mr Levai were aware of the medical and personal issues which impacted Mr Rowe’s ability to attend for work. Mr Rowe had provided three medical certificates concerning this, with the last one in respect of his seizure provided in July 2020.

[19] Mr Levai took over the direct supervision of Mr Rowe in early December 2020. Mr Levai gave evidence that Mr Rowe attended for work four days out of the twelve between 1 December 2020 and 16 December 2020.

[20] Mr Rowe attended for work on 17 December 2020 but was absent from work for the period of nine working days between 18 December and 10 January 2021 (noting the Christmas close down). Mr Levai’s statement said Mr Rowe ‘provided no notice of or reason for his absence through this period’. This was inconsistent with a number of text messages which came to light during the Conference. These text messages were sent by Mr Rowe to SATC and advised of absences in December 2020.

[21] Counsel for SATC advised that he was aware of the existence of the text messages but could not adequately explain why they were not produced to the Commission. Whilst this raises questions as to him meeting his duty to the Commission as a legal practitioner it has not influenced my decision.

[22] Mr Moyle was aware of Mr Rowe’s non-attendance from 4 January 2020 but made a decision not to contact Mr Rowe.

[23] Mr Rowe presented for work on 12 February 2021. Mr Levai formed the view that Mr Rowe did not appreciate the seriousness of his failure to attend work for over 5 weeks and that his reliability was unlikely to change. Mr Levai concluded that Mr Rowe had abandoned his employment.

[24] SATC’s concern about Mr Rowe’s non-attendance is confined to the period after 4 January 2021. This forms the basis for its view that Mr Rowe had abandoned his employment.

[25] I was referred to the Full Bench Decision in Abandonment of Employment. 5 Paragraph [21] of the decision defines the term as follows:

“[21] “Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.”

[26] In Shamrock Consultancy Pty Ltd v Norma Ah San 6(Shamrock) the test is described as an objective one – whether the employee’s conduct is such to convey to a reasonable person in the position of the employer and based on the facts reasonably known to the employer at the time, that the employee has repudiated their duty to meet their obligations under the contract of employment.

[27] I have applied the test as detailed in Shamrock.

[28] In my view SATC was not in a position to reasonably conclude that Mr Rowe had abandoned his employment.

[29] SATC had knowledge that Mr Rowe had difficulty in attending for work when his son was on school holidays. The South Australian school holidays concluded on 27 January 2021.

[30] SATC was aware the Mr Rowe himself was suffering from medical issues including mental health issues.

[31] SATC determined that it would not contact Mr Rowe in order to ascertain the reasons for his non-attendance despite its knowledge of his medical condition. In my view a reasonable person would have enquired as to the status of Mr Rowe based on its prior knowledge of his circumstances. Mr Rowe had not exhausted his personal leave entitlement.

[32] In my view a reasonable person in the position of Mr Levai would have understood that Mr Rowe had carer’s responsibilities until 27 January 2021, and knowing his medical history would not have come to the view that Mr Rowe has evinced a willingness or an inability to substantially perform the obligations under his contract of employment.

[33] In my view the actions of SATC on 12 February 2021 had the effect of dismissing Mr Rowe from his employment and I so find.

[34] The matter will be listed for further conciliation.

COMMISSIONER

Appearances:

M Rowe, the Applicant.

R Collinson on behalf of the Respondent.

Hearing details:

2021.
Adelaide:
May 4.

Printed by authority of the Commonwealth Government Printer

<PR729779>

 1 [2020] FCAFC 152 at [51].

 2   Exhibit A1

 3   Exhibit R1

 4   Exhibit R2 and Supplementary Statement Exhibit R3

 5   [2018] FWCFB 139

 6   [2021] FWCFB 274