Young Sim Lee v Jimmy's on the Mall Pty Ltd
[2011] FWA 3386
•31 MAY 2011
[2011] FWA 3386 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Young Sim Lee
v
Jimmy’s on the Mall Pty Ltd
(U2010/15169)
COMMISSIONER BISSETT | MELBOURNE, 31 MAY 2011 |
Application for unfair dismissal remedy - jurisdiction - whether termination on employer’s initiative.
[1] Ms Lee lodged an application under s.394 of the Fair Work Act 2009 on 17 December 2010 claiming she had been unfairly dismissed from her employment with Jimmy’s on the Mall Pty Ltd (the Respondent). Ms Lee claimed that her employment had been terminated whilst she was on eight weeks’ leave in Korea.
[2] The application was subject to a conciliation conference where the matter failed to settle. Ms Lee participated in that conference.
[3] The Respondent indicated that it had a jurisdictional objection to the application proceeding on the basis that there was no termination at the initiative of the employer. Directions were subsequently issued for the Respondent to file and serve material with respect to its jurisdictional objection by Wednesday 30 March 2011. The Applicant was to file and serve any material on which she sought to rely by 13 April 2011. The jurisdictional objection was listed to be heard on 11 May 2011.
[4] The Respondent complied with the directions issued. The Applicant failed to file any material in response to the directions.
[5] The matter was subsequently heard on 11 May 2011. The Applicant failed to attend the hearing. The Respondent was represented at the hearing. The Respondent sought to tender two witness statements, one of Mr John Dodrill, 1 the General Manager of the Pig ‘N’ Whistle, where the Applicant worked, and one of Ms Jenny Mantle,2 a Director of Jimmy’s on the Mall Pty Ltd. There being no objection the two statements were admitted.
[6] During the hearing the representative for the Respondent indicated that the ‘true identity of the employer is Jimmy’s on the Mall Pty Ltd’ 3 and sought that the identity of the employer be corrected on the tribunal’s files.4 I agreed to this. The employer shall be identified as Jimmy’s on the Mall Pty Ltd.
[7] The Respondent submits that the Applicant was engaged on a 457 business visa by the Respondent. The Applicant applied through her local manager to Mr Dodrill to take leave for an eight week period in November/December 2010. The request for leave was rejected for two reasons - firstly the Applicant did not have the period of leave accrued and secondly it was an extensive period of time sought to be taken at the busiest period of the year. Further, the request for leave was made in late September or early October despite staff being asked in August to lodge any applications for leave so planning could be done to cover vacancies arising from approved leave.
[8] On lodging her application for leave the Applicant was advised by Mr Dodrill to speak to Ms Mantle, a Director of the Respondent, about the approval of her leave request. Mr Dodrill’s evidence is that he asked the Applicant on a number of occasions if she had sought approval from Ms Mantle for the leave. Just prior to the proposed leave date the Applicant advised Mr Dodrill that Ms Mantle had approved the leave. After the Applicant went on leave Mr Dodrill spoke to Ms Mantle and was advised that the Applicant had not spoken to her to gain approval for the leave. Ms Mantle’s uncontested evidence is that the Applicant did not approach her for permission to take leave.
[9] Mr Dodrill’s evidence is that the Applicant was on a 457 visa and was being paid the minimum salary required ($42,000 per annum) based on her working 48 weeks per year and taking 4 weeks’ paid annual leave. If the Applicant took leave without pay this would potentially place the Respondent in breach of the visa requirements, as it would have paid less than the minimum amount.
[10] On the basis that the Applicant left the employer for an eight week period without approval for the leave, the Respondent submits that the Applicant abandoned her employment and there was, therefore, no termination at the initiative of the employer.
[11] In her application for unfair dismissal the Applicant said that her leave had been approved and that when she returned from Korea she was advised that her employment had been terminated.
[12] The Applicant chose not to attend the hearing to put her case against that of the employer. Given these circumstances my associate forwarded to Ms Lee a copy of the transcript of the hearing and correspondence advising the Applicant that she had until 25 May 2011 to provide any response to the matters raised in the transcript or materials filed by the Respondent. No response was received from Ms Lee. Given this lack of response I have no choice but to assume that the Applicant does not wish to lodge any material in response to the Respondent’s submissions.
The statutory provisions
[13] Ms Lee’s application was made under s.394 of the Act. That section reads (in part):
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
[14] Guidance as to what constitutes dismissal is given in s.386 of the Act which reads, relevant to this matter:
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.
[15] The Applicant claims she was dismissed by her employer whilst the Respondent claims that it did not terminate the Applicant’s employment, rather that she abandoned her employment.
[16] The expression ‘termination at the initiative of the employer’ was considered by a full bench of the AIRC in O’Meara v Stanley Works Pty Ltd 5:
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.
[17] Whilst the decision in O’Meara was concerned with a constructive dismissal, the principle enunciated therein is applicable in this matter. 6 The matter to be determined here is if there was any action of the employer intended to bring the employment relationship to an end.
[18] In this matter the Respondent advised employees in August that, if they wished to take leave later in the year, they would need to apply for the leave straight away. October to December is one of the busiest periods in the industry. The Applicant did not apply for leave and, on the evidence of Mr Dodrill and Ms Mantle, misled Mr Dodrill as to the approval of her leave.
[19] It is fair and reasonable for an employer to require employees to apply for leave in advance, particularly during the busiest times of the year. In this case there was no attempt to stop staff taking leave. Employees were asked to apply in advance but no so far in advance that it might be considered unreasonable. Whether the Applicant’s leave request would have been approved or not will not be known because she never sought permission to take the leave.
[20] All of the evidence points to the Applicant deliberately leaving her employment without notice to or approval of the Respondent. On any objective view of the Applicant’s conduct the Respondent had reasonable grounds for believing that the Applicant had abandoned her employment.
[21] In all of the circumstances I find that the Applicant abandoned her employment. The termination of her employment was not at the initiative of the employer.
[22] The Applicant has not therefore been dismissed within the meaning of s.386 of the Act and is therefore not eligible to make an application under s.394 of the Act.
[23] The application is dismissed. An order to this effect will be issued.
COMMISSIONER
Appearances:
C. Mossman for the Respondent.
Hearing details:
2011.
Brisbane:
11 May.
1 Exhibit M1.
2 Exhibit M2.
3 Transcript PN96.
4 PN98.
5 PR973462 (11 August 2006) (footnote omitted).
6 See J Searle v Moly Mines Limited [2008] AIRCFB 1088, [21].
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