AIRCFB 1088
Workplace Relations Act 1996
s.120—Appeal to Full Bench
JUSTICE GIUDICE, PRESIDENT
MELBOURNE, 29 JULY 2008
Appeal – termination of employment – termination at the initiative of the employer – Workplace Relations Act 1996 ss.120, 642(1), 643(1).
 This is an appeal, for which leave is required, by Ms J Searle (the appellant) against a decision made by Commissioner Williams on 14 March 2008. 1 The appeal is brought pursuant to s.120 on the Workplace Relations Act 1996 (the Act).
 The appellant made an application in relation to the termination of her employment with Moly Mines Limited (the respondent). It is unnecessary to deal with the grounds of the application since, as will become clear, the principal issue in Commissioner Williams’ decision and in this appeal is whether the appellant’s employment was terminated at the initiative of the respondent employer.
 The background to the appellant’s application for relief is that in September 2007 she made serious allegations to the respondent about a co-worker. The respondent suspended both employees pending the results of an investigation. The investigation found that the appellant’s allegations were unsubstantiated. The respondent sought to persuade both employees to leave their employment on a negotiated basis. Neither employee agreed. Mediation was attempted but no agreement was reached.
 On 31 October 2007 the respondent proposed that the appellant return to work on the basis that she would not be required to work with, or near, the other employee. The respondent was unable to elicit a response to this proposal from the appellant despite attempts at telephone and written communication.
 On 1 November 2007 the appellant’s legal representative, Mr Edmonds, provided the respondent with a medical certificate which indicated that the appellant would be unfit for work from 1 November to 8 November 2007. At the same time Mr Edmonds asked that all queries in relation to the appellant’s ongoing employment should be directed to him.
 On 2 November 2007 the respondent’s solicitors wrote to the appellant’s legal representative advising him that if the appellant did not return to work at the end of her sick leave she would be considered to have abandoned her employment. The solicitors indicated that they would continue to communicate with Mr Edmonds but that the respondent itself would continue to contact the appellant directly. This advice stated that should the appellant refuse to communicate with the respondent, that might also constitute grounds to consider that she had abandoned her employment.
 The appellant did not return to work after the expiry of her sick leave on 8 November. On 12 November the respondent’s solicitors again wrote to the appellant, through her legal representative, advising that if the appellant did not return to work or advise of the reason for her absence within two days she would be considered to have abandoned her employment. This letter also referred to the abandonment of employment provisions in the appellant's contract of employment. It is common ground that at all material times the contract contained the following provision:
“18.4 Abandonment of employment
Failure to report for work and failure to notify MOL for three (3) consecutive working days shall constitute abandonment of employment. If you abandon your employment you will be terminating your contract of employment without notice.”
 On the following day, 13 November 2007, the appellant provided a Workers’ Compensation First Medical Certificate for the period from 8 November 2007 until 22 November 2007. On the face of the certificate it had been issued on 8 November 2007 and this was consistent with the appellant’s evidence.
 Thereafter there was correspondence between the parties as to the appellant’s workers’ compensation claim and other matters. The respondent expressed its ongoing concerns at the appellant's refusal to communicate directly with it. On 20 November 2007 the respondent indicated, through its solicitors, that it was anxious to facilitate the appellant’s return to work. It also indicated, however, that if the appellant continued to refuse to deal directly with her employer she may be regarded as having abandoned her employment and could not be seen to be attempting rehabilitation from any medical condition. On 21 November her doctor issued a Workers’ Compensation Progress Medical Certificate covering the period from 21 November to 12 December 2007. The appellant lodged a workers’ compensation claim dated 23 November 2007.
 The respondent was apparently unaware that the Workers’ Compensation Progress Medical Certificate had been issued. Acting on the basis of the previous certificate, which ran until 22 November, the respondent wrote to the appellant on 30 November 2007 in the following terms:
“Moly Mines Limited (Moly) has not received any communication from either you or your lawyer since 23 November 2007 when your workers’ compensation claim was delivered to Moly.
As noted in the letter from Nicholas Ellery of Corrs Chambers Westgarth to Luke Edmonds of CEPU Legal Pty Ltd dated 20 November 2007, failure to communicate can constitute an abandonment of employment.
In addition to your failure to communicate, we note that the most recent medical certificate that you provided to Moly expired on 22 November 2007.
We also note that your contract of employment states that “failure to report for work and failure to notify Moly Mines for three (3) consecutive working days shall constitute abandonment of employment. If you abandon your employment you will be terminating your contract without notice.”
Moly considers your actions to constitute an abandonment of your employment and consequently, a repudiation of your employment with Moly. Moly accepts this repudiation.
Your accrued entitlements will be calculated and paid into your bank account in the usual manner.”
 Later that same day the respondent received a telephone call from the appellant's medical centre confirming that the appellant had received the respondent’s letter. The Workers’ Compensation Medical Certificate of 21 November was sent to the respondent by facsimile very shortly afterwards.
 There are two other parts of the evidence which should be referred to. Firstly, the appellant gave evidence that she had been informed by staff at the medical centre which she attended that they would forward the medical certificate to the respondent. She testified that was the case in relation to the Workers’ Compensation First Medical Certificate issued on 8 November and in relation to the Workers Compensation Progress Medical Certificate issued on 21 November 2007. The practice manager of the medical centre indicated in a statement that the certificate issued on 21 November had been forwarded to the respondent by ordinary post on the same day.
 The other matter is the respondent’s concern already referred to, that the appellant would not deal directly with it, but would only communicate through her legal representative, Mr Edmonds. There was uncontested evidence that the appellant declined to communicate directly with the respondent after it had required her to return to work. There was also evidence that letters from the respondent to the appellant dated 1 and 2 November 2007 were returned unopened.
 The appellant sought leave to introduce fresh evidence on the appeal but we refused that application.
The statutory provisions
 The application was made under s.643(1) of the Act. That section reads:
(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable; or
(b) on the ground of an alleged contravention of section 659, 660 or 661; or
(c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).”
 The Act provides some guidance in relation to the word “termination.” Section 642(1) includes this definition:
“termination or termination of employment means termination of employment at the initiative of the employer.”
 It follows that when s.643(1) uses the word “termination” it should be read as meaning termination at the initiative of the employer.
 Commissioner Williams determined that the termination of the appellant's employment was not at the initiative of the respondent and that, accordingly, the Commission did not have the jurisdiction to consider the application. It dismissed the appellant’s application.
 The appellant asserts that Commissioner Williams was in error in concluding that the termination of the appellant’s employment was not at the initiative of the respondent. We consider that it is arguable that the Commissioner’s decision is erroneous and, because the question at issue is central to the Commission’s jurisdiction, it is appropriate to grant leave to appeal. We do so.
Termination at the initiative of the employer
 A Full Bench recently considered the meaning of the expression “termination at the initiative of the employer”’ in O’Meara v Stanley Works Pty Ltd. 2 For our purposes it is sufficient to refer to the following passage in which, having referred to the authorities, the Commission said:
“ In our view the full statement of reasons in Mohazab [(1995) 62 IR 200] which we have set out together with the further explanation by Moore J in Rheinberger [(1966) 67 IR 154] and the decisions of Full Benches of this Commission in Pawel [Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C] and ABB Engineering [Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C] 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.” [Mohazab at page 205.] 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.”
 It is apparent from the last sentence of the passage that the Commission was considering the matter in the context of an allegation that an employee’s resignation was a constructive termination by the employer. That sentence apart, the statement of principle is the one we shall apply namely: did the employer take some action which was intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end.
 Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd 3:
“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):
“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy's Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”
And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:
“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.” ”
 In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.
 We turn now to the circumstances of this case. In doing so we note that the question is whether the appellant’s employment was terminated at the respondent’s initiative. It should be clear that no issue arises at this stage as to the merits of the appellant’s case. It is therefore not relevant to ask whether particular conduct was justified, reasonable or appropriate except to the extent that the answer may shed light on the issue of whether the appellant’s employment was terminated at the respondent’s initiative.
 We have set out what appear to us to be the relevant facts in summary form above.
 It is clear that following the failure of settlement attempts the respondent advised the appellant on 31 October 2007 that she was required to return to work, and that it would be arranged that she did not have to work at the same site as the nominated co-worker. She sought medical and legal advice and subsequently Mr Edmonds forwarded the medical certificate of 1 November to the respondent. It might be concluded that the tenor of Mr Edmonds’ letter was directed at negotiations that would finalise the appellant's employment. The requirement that future communication with the appellant should be through Mr Edmonds’ is consistent with this but may also be explained by the appellant's state of health at that time.
 Whatever the reasons for refusing to deal directly with the respondent, it is clear that from 1 November all of the appellant’s absences were covered by medical certificates and that she became a workers’ compensation claimant some weeks later. From the time the respondent received the First Workers Compensation Medical Certificate on 13 November 2007 the respondent was aware that the appellant was a workers’ compensation claimant and it is not contested that shortly afterwards the respondent forwarded the relevant documentation to her to enable her to make a formal claim. The appellant demonstrated her understanding of the requirement to formalise her workers compensation claim by forwarding the claim to the respondent on 23 November 2007. Significantly, we consider the appellant was, from this time, absent from work on workers compensation.
 We have already mentioned the letter the appellant received from the respondent’s solicitors on 20 November 2007 encouraging a return to work and emphasising that if the appellant continued to refuse to communicate directly she could be regarded as abandoning her employment and could not be regarded as attempting rehabilitation.
 On 30 November 2007 the respondent wrote directly to the appellant. We have set out the terms of the letter above. There are a number of indications that the termination was at the initiative of the respondent.
 The first and most obvious is that the respondent sent the letter. Had the letter not been sent the employment would not have terminated at that time. Secondly, the appellant was a workers’ compensation claimant. No party referred to the relevant workers’ compensation legislation and it would be inappropriate to deal with it in the absence of submissions. Nevertheless the fact that the appellant had made a claim and the claim may have been accepted (although this is not dealt with directly in the evidence) should have put the respondent on inquiry as to whether there were continuing medical certificates to cover the absence.
 When one looks at the appellant’s conduct, however, the position becomes even plainer. First, as we have already noted, all of her absences were in fact covered by medical certificates. We think it must be accepted that the appellant relied on the staff at her medical centre to forward the certificate covering the period from 21 November to 12 December to the respondent. While we think it should also be accepted that the certificate was despatched to the respondent on 21 November, that matters little because we accept that the respondent was unaware of the certificate at the time the letter of termination was written.
 It may be that the appellant did not expect to return to work and that, at least from the beginning of November, preferred a financial settlement of the employment arrangement on terms suited to her. She insisted that contact with her be through Mr Edmonds. Given the problem with the transmission of the First Medical Certificate to the respondent and the respondent’s insistence that it be kept informed of the reasons for absence, it may have been expected that the appellant would have taken steps to ensure the respondent received any later certificate. In light of that reliance there is no basis to conclude that she intended to bring the contract to an end either by not providing a medical certificate, or by not communicating directly with the respondent or otherwise.
 Absent the provisions of the contract, which we shall deal with shortly, the evidence leads to the conclusion that the termination in this case was at the initiative of the respondent. Subject to the contract, we have no doubt that the letter of 30 November 2008 terminated the employment relationship.
 We turn now to cl.18.4 of the contract. It will be recalled that it provides that failure to report for work and failure to notify the respondent for three consecutive working days shall constitute abandonment of employment. The provision is to be read in the context of the surrounding statutory and award provisions. We do not consider that cl.18.4 of the contract can be taken to apply to every absence. It is necessary to distinguish between absences with some notice of the circumstances and absences which are unexplained. As of 23 November 2007 the provision of a formal workers compensation claim was a clear indication that the appellant was not abandoning her employment. In the general sense the appellant was absent on workers’ compensation and the respondent knew that. It is difficult in those circumstances to say that the appellant was under a duty to report for work. As a matter of objective fact she was entitled to be absent pursuant to the certificate.
 There is another consideration, however, in relation to cl.18.4 of the contract. That clause includes a provision that breach of the clause constitutes abandonment of the employment and termination of the contract without notice by the employee. Even if the appellant was in breach of the clause, because she had failed to report for work and had not notified the respondent, did the clause operate to deem her to have abandoned her employment and to have terminated the contract of employment. The respondent contended strongly that this provision operated in such a fashion and therefore the termination was not at the respondent’s initiative.
 In our view breach of cl.18.4 of the contract would not necessarily result in termination of the employment. Our reasoning is as follows. Any breach of contract can be waived by the other party. In this case if the respondent had received the medical certificate on 29 November it might well have decided to treat the employment as ongoing, even though three days had passed. Indeed it might have good reason for doing so. In those circumstances it could not be said that the employment relationship had terminated after three days. It is no doubt for reasons such as these that the respondent referred in its letter of termination to accepting the appellant’s repudiation.
 Before concluding we think it is appropriate to make a further comment on the Commissioner’s reasons for decision. It is only necessary to refer to one part of the decision, one which played a critical part in the reasoning overall. After reviewing the evidence and submissions the Commissioner expressed his conclusions in relation to the significance of the letter of termination. He said:
“ While the applicant was absent from her employment how she communicated with her employer concerning her situation was her choice. However as the facts of this matter demonstrate her choice not to directly communicate with her employer regarding her absence had the fatal side effect that at a critical point her employer was not told her true situation and she was unaware that this was the case.
 It is agreed between the parties that at the time her employer reviewed her absence and her silence and concluded this evinced an intention to abandon her employment they were unaware that she had obtained a third medical certificate. This had not been received by the respondent at this point.
 This very unfortunate situation directly resulted from the applicant’s decision not to directly communicate with her employer regarding her situation.
 The failure of the applicant’s indirect method of communication meant her employer had neither seen her nor heard from her for five working days after her second medical certificate had run out. Being unaware of the existence of the third medical certificate the respondent concluded that her failure to attend for work and her silence evinced an intention to abandon her employment and they accepted this repudiation.
 Applying the common law authorities, considered objectively the conduct of the applicant, from the perspective of the respondent at the time, can in my view reasonably be said to have conveyed to the respondent an intention by the applicant to abandon her employment. This was how the respondent viewed the situation on the information available to them at the time, they accepted the repudiation and I am satisfied that was reasonable in the circumstances.” 4 (Footnotes omitted)
 It seems to us that the Commissioner has dealt with the matter by evaluating the reasonableness of the parties’ conduct. If that is the case he fell into error. The respondent’s conduct may have been reasonable, but that is not a matter which was relevant at that stage of the proceedings. The question is whether the respondent initiated the termination. It may be that if there had been more direct communication the medical certificate would have been produced earlier, but a number of important facts were directly relevant. The whole of the appellant’s absence was covered by a workers compensation medical certificate. She had relied on the medical staff to forward the certificate to the respondent. Furthermore the respondent knew the appellant had a workers compensation claim. It may be true, as the Commissioner found, that the respondent concluded from the appellant’s failure to attend work and her silence that she had abandoned her employment. But the respondent’s conclusion was clearly incorrect. Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.
 We have already indicated that the statutory test relates to the termination of the employment relationship. The application of the common law principles relating to termination of the contract of employment may not yield the correct answer in any given case. It can be seen from the passage we have quoted that the Commissioner’s analysis drew heavily on those principles. Those principles may not be irrelevant to the inquiry, but in this case they proved to be a distraction from the question posed by the statute.
 For all of these reasons we have concluded that the employment in this case was terminated at the initiative of the respondent. Therefore the Commissioner’s decision dismissing the appellant’s application for relief must be quashed. The application should now be referred into conciliation in the usual way.
BY THE COMMISSION:
S Prince of counsel for Ms J Searle.
N Ellery of counsel for Moly Mines Limited.
Final written submissions:
Printed by authority of the Commonwealth Government Printer
<Price code C, PR982301>
1  AIRC 210
3 (1995) 185 CLR 410 at 427.
4  AIRC 210.