[2010] FWA 2357 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Susann Sharpe
v
MCG Group Pty Ltd
(U2009/14322)
COMMISSIONER ASBURY |
BRISBANE, 22 MARCH 2010 |
Termination of employment - jurisdiction.
Background
[1] On 4 December 2009, Ms Susann Sharpe (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The Respondent, MCG Group Pty Ltd (MCG), filed a Response on 8 January 2010, stating that:
“The application is brought out of time as in accordance with the Applicant’s contract of employment her abandonment and termination is effective from 6 November 2009.”
[2] The response goes on to state that the applicant has not established that she was terminated for any reason other than abandonment of employment. MCG also indicated that these matters were jurisdictional objections to the application.
[3] A hearing was conducted on 11 February 2010 for the purposes of determining the jurisdictional objections. In the outline of submissions provided at the hearing on behalf of MCG, those matters were articulated in the following terms:
“(a) The Applicant abandoned her employment with the Respondent effective 6 November 2009, after the Applicant failed to attend work at the expiration of the applicable medical certificate; and in the alternative;
(b) The Applicant abandoned her employment with the Respondent effective 16 November 2009, after the Respondent’s direction for the Applicant to attend work on 16 November 2009 for the purposes of evaluation and/or re-induction or training.
Accordingly the Applicant is prevented from proceeding as:
(a) The Respondent (sic) has not been dismissed in accordance with s.386 of the Act; and
(b) The Respondent’s application has been brought out of time.”
[4] Mr Shaw for MCG conceded that if Ms Sharpe abandoned her employment, then the issue of whether her application for an unfair dismissal remedy was brought outside the time limit provided by the Act is irrelevant. It was also conceded that if it was found that Ms Sharpe did not abandon her employment, and was dismissed at the initiative of the employer, MCG would not argue that the application was filed outside the time limit provided in s.394(2) of the Act.
[5] It was contended for Ms Sharpe that she had been dismissed, on the basis that action on the part of MCG had brought about the end of the employment relationship. Ms Sharpe was suffering from physical and psychological injuries at the point her employment was terminated, and MCG was well aware of this. Ms Sharpe had not intended to bring her employment relationship to an end.
[6] Both parties provided material in affidavit form as follows:
[7] The deponents were not required for cross-examination. From the affidavits and the correspondence annexed to them, the following relevant facts can be ascertained.
Relevant Facts
[8] Ms Sharpe was employed by MCG as a Moxy Truck Operator at the Millenium Poitroel Mine for a period of three weeks in 2008 and was re-employed at that mine and then at the Isaac Plains Open Cut Coal Mine from March 2009. A document entitled “Individual Transitional Employment Agreement – MCG Group Pty Ltd” (the Employment Agreement) dated 1 April 2009 and bearing a signature said to be that of Ms Sharpe, was appended to Mr Shaw’s affidavit. Mr Shaw said that it was his understanding that this Agreement was formalised under the previous Workplace Relations Act but he had no instructions in this regard. In the absence of evidence to the contrary, and because nothing turns on these matters, I accept that Ms Sharpe signed the Agreement and that it was formalised under the Workplace Relations Act 1996.
[9] The Employment Agreement at clause 23, provides as follows:
“23. ABANDONMENT OF EMPLOYMENT
In the event that you are absent for more than three consecutive working days without notifying the Company, the Company will assume that you have abandoned your employment. Should such an event arise you will be deemed to have terminated this Agreement, from date of the last day of work that you attended, without providing written notice to the Company of your intention to do so, in which case clause 24(c) shall apply.”
[10] Clause 24(c) of the Employment agreement provides that:
“(c) Should you fail to comply with the requirement to give the Company two weeks written notice of your intention to terminate this Agreement you shall forfeit up to an amount equivalent to two weeks wages. The Company shall be entitled to withhold any such amount that is, or becomes, due and owing to you by the Company under the terms of this Agreement.”
[11] On 9 May 2009 Ms Sharpe was involved in an accident in the course of her work, and suffered an injury to her lower back. Ms Sharpe lodged a claim for Workers’ Compensation in respect of that injury and the claim was accepted by WorkCover. Ms Sharpe was off work altogether and then returned to work on a suitable duties plan. There were issues with the suitable duties plan and correspondence between solicitors for Ms Sharpe and MCG in relation this matter.
[12] It is contended that during the period of light duties Ms Sharpe suffered a sequelae psychological injury, and that by early August 2009 MCG was made aware that Ms Sharpe was suffering from such an injury. Ms Sharpe was certified as unfit for duty on 5 August 2009. According to Mr Shaw’s affidavit, medical certificates covering the following periods were provided to MCG:
9 May until 31 May 2009 – no duties;
15 June to 1 July 2009 – suitable duties;
19 June to 1 July 2009 – suitable duties;
5 August to 5 November 2009 – totally incapacitated for work. 1
[13] The medical certificate for the period from 5 August to 5 November 2009 stated that Ms Sharpe was suffering from major depression and panic attacks.
[14] On 17 July 2009 Winchester Young and Maddern Solicitors wrote on behalf of MCG to Taylors Solicitors, who were acting for Ms Sharpe in workers compensation matters, seeking confirmation as to whether that firm held instructions to act for Ms Sharpe in relation to defamation proceedings to be instituted by MCG against Ms Sharpe. There was an exchange of correspondence between the two firms of solicitors in relation to this matter which is appended to the affidavit of Mr Worsley. Relevantly, on 22 July 2009 Taylors corresponded with Winchester Young and Maddern seeking information about the basis of the defamation claim and stating that the matter was causing Ms Sharpe significant anxiety while she was recovering from a workplace injury, which had in itself caused her considerable distress. 2
[15] Correspondence from Taylors to Winchester Young and Maddern of 27 August 2009, responding to the proposition that MCG did not know that Ms Sharpe was suffering from psychological problems prior to 22 July 2009, points to medical certificates and reports referring to Ms Sharpe’s psychological condition contained in Ms Sharpe’s workers compensation file. The letter also points to the fact that MCG arranged appointments with a psychologist for Ms Sharpe on 12 and 15 June 2009 and that timesheets reflected that Ms Sharpe was absent from the workplace for the purpose of attending those appointments. 3 On 18 and 28 September 2009 Taylors wrote to Winchester Young and Maddern confirming previous advice that MCG’s intended defamation action was causing Ms Sharpe significant additional stress on top of the psychological/psychiatric problems she was already suffering.4
[16] According to Mr Worsely’s affidavit, Ms Sharpe moved to Bundaberg in September 2009. 5 On 2 October 2009, Winchester Young and Maddern wrote to Taylors stating that:
“Our client instructs that your client’s latest WorkCover Certificate expired on 30 September 2009. Our client has been in contact with both WorkCover and your client’s doctor and has been informed that there is no new or current Certificate in existence. We are instructed that our client has learned that your client’s claim for psychological injury has been rejected and that her claim for back injury has been assessed and an offer made to Ms Sharpe.
Our client also instructs that Doctor Sornachalan in the report of 9 September 2009, formed the view that Ms Sharpe had reached a plateau in her rehabilitation program and her condition is considered to be stationary and stable.
In these circumstances, our client believes that your client should be able to return to her role as a moxy truck driver at Isaac Plains Mine Site by Monday 5 October 2009. Please inform your client that MCG Group Pty Ltd requires her attendance at Moranbah South Quarry at 9.00 am on Monday for re-familiarisation and re-induction.” 6
[17] On 3 October 2009 Taylors replied to that correspondence, noting that it had been received at 4.11 pm on the previous day (2 October 2009 was a Friday). The correspondence from Taylor’s solicitors in response states that Ms Sharpe’s instructions had not been obtained in relation to matters raised in the letter of 2 October, and goes on to state inter alia that:
“Dr Sornachalam has stated that our client’s physical injuries have reached a plateau, however that does not mean that he is of a view that she has recovered from those injuries or indeed that she is physically capable of working as a plant operator or a Moxy truck driver.
In fact a return to this type of work is contra indicated on the basis of her physical injuries alone. The doctor is of the view that Ms Sharpe has suffered a 5% permanent partial impairment of the body as a whole as a result of the accident, which is a significant disability. He reports that she experiences constant back ache and she has a sitting tolerance of only 15 minutes. This is obviously inconsistent with driving plant and machinery…
Our client’s claim that she has suffered a psychological/psychiatric injury in respect of the accident on the 9th May 2009 has been rejected by WorkCover Queensland and an application for review has been lodged with Q Comp by our client.
Our client maintains that she is suffering from a serious psychological/psychiatric illness, which has been caused by her employment. She has medical certification from her treating psychiatrist Dr B O’Sullivan that she is totally incapacitated for work until the 5th November 2009 and that she will need review before then.
We note that your client believes that Ms Sharpe should be able to return to her role as a Moxy operator by next Monday morning and requires that she attend for work then. Please detail the basis for this belief, because as we have pointed out above, Dr Sornachalam’s report certainly does not support it.” 7 [There is a variation in the spelling of the doctor’s name in the correspondence. I take the reference in both pieces of correspondence to be to the same doctor.]
[18] On 16 October 2009 Taylors again wrote to Winchester Young and Maddern noting that a response had not been received to the letter of 3 October 2009 and that in addition, Ms Sharpe had instructed that she was not properly trained or appropriately ticketed to drive Moxy trucks. On 10 November 2009, Winchester Young and Maddern wrote to Taylors stating that:
“Notwithstanding your client’s view concerning her training, we are instructed that your client’s absence from the work site requires that she be re-inducted and re-trained for that position.
Referring to your letter of 3 October 2009. Your correspondence outlined medical grounds on which your client was unable to return to work. The first of those grounds was that your client has suffered a 5% permanent partial impairment of the body and that your client experiences constant back ache and has a sitting tolerance of only 15 minutes. This implies that your client is unfit for work and unable to return to work. If the pain was able to be treated, no doubt this would have been investigated by your client.
The second ground that you advance is the allegation that your client suffers a serious psychological/psychiatric illness caused by her employment. You assert that Dr O’Sullivan has certified her totally incapacitated for work until 5 November 2009. You state that your client will be reviewed before that date. We are presently instructed that no further medical certification in relation to her psychiatric illness has been received. This implies that she is fit to return to work.
We are instructed that our client does require your client to return to work. If she is unable to return to work because of the physical injury and her inability to be seated for more than 15 minutes, then this would suggest that she is permanently unfit for this occupation. Our client wishes to assess her fitness and if able to return to work, to re-induct and re-train your client to commence work. In the circumstances we are instructed to request that your client attend at Isaac Plains Mine Site on Monday, 16 November 2009. Please inform your client that our client requires Ms Sharpe to attend at Moranbah South Quarry at 9.00 am on that day to be re-inducted and re-trained for her role as a moxy truck driver…” 8
[19] Taylors responded on 19 November 2009, stating that:
“…Our client instructs that she is still physically and psychologically incapable of performing work as a Moxie Truck Driver. We assume that being re-inducted and re-trained in that role, would involve being in and operating a Moxie truck and as such, she is not presently capable of performing these tasks.
Our client is attempting to get further certification in relation to these ongoing problems and once it comes to hand we shall onforward it to you. In the meantime, we enclose herewith a medical report from Dr O’Sullivan dated 23 September 2009.
For your information, our client’s application for Review with Q-Comp has been knocked back and in accordance with our instructions we are filing an Appeal in the Industrial Magistrates Court…” 9
[20] The medical report enclosed with the letter of 19 November 2009, states inter alia that in Dr O’Sullivan’s opinion:
[21] A facsimile transmission report appended to Mr Worsley’s affidavit indicates that this letter was sent to Winchester Young and Maddern at 2.17 pm on 20 November 2009. On that date, Winchester Young and Maddern wrote to Taylors in the following terms:
“…We refer to our letter of 10 November 2009.
We note that this was forwarded to you by facsimile on the same day and received by you at 16.08 hours. In our correspondence, we requested that your client resume work. Your client did not attend as requested on Monday 16 November 2009, and no reasonable excuse has been advanced. We submit our client’s request was reasonable in all of the circumstances and your client’s failure to attend breaches the terms of her employment, in that she has failed to comply with a reasonable direction by her employer. Alternatively, your client’s failure to attend constitutes and abandonment of her employment and a repudiation of the employment contract.
Our client has instructed us to give notice terminating your client from her employment. The grounds of termination are that she unreasonably failed to comply with a direction of the employer and/or the abandonment of her employment repudiating the Contract of Employment. Please arrange for your client to return any of the employer’s property presently in her possession forthwith. Your client’s group certificate and termination certificate will be forwarded to you by our client…” 11
[22] Taylors responded on the same date, stating that:
Legislation and Case Law
Termination at the initiative of the employer
[23] By virtue of s.385(a) of the Act, an employee will be entitled to bring an application for relief in respect of an unfair dismissal, only in circumstances where the employee has been dismissed. Section 386(1) provides that 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.
[24] In O’Meara v Stanley Works Pty Ltd 13 (O’Meara), a Full Bench of the Australian Industrial Relations Commission (AIRC) considered cases dealing with the concept of termination at the initiative of the employer, with particular emphasis on the decision of the Full Court of the Federal court in Mohazab v Dick Smith Electronics14 (Mohazab). A number of principles can be distilled from passages of Mohazab emphasised by the Full Bench in O’Meara. Essentially, termination at the initiative of the employer involves as an important feature, that the act of the employer results directly or consequentially in the termination of the employment, so that the employee does not voluntarily leave the employee relationship.15 That is, had the employer not taken the action, the employee would have remained in the employment relationship.16
[25] The term “initiate” should not be given a narrow meaning. Even where an employee does some act which is the first in a chain of circumstances that leads to termination, the focus should be on the step or steps that effectively terminated the employment, 17 or the critical action or actions.18
[26] The Full Bench in O’Meara also referred to the case of Rheinberger v Huxley Marketing Pty Limited 19 where Justice Moore (a member of the Full Court in Mohazab) said, after referring to passages in Mohazeb:
“However, it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable consequence of the employer’s conduct.” 20
[27] The Full Bench in O’Meara went on to cite decisions of other AIRC Full Benches where these concepts had been addressed. In Pawel v Advanced Precast Pty Ltd 21 (Pawel) a Full Bench of the AIRC posed the example of an employee who requests a pay rise and resigns in dissatisfaction when that request is denied, stating that although the act of the employer in refusing the pay rise has consequentially resulted in the termination of employment, it could not be said that the resignation is a termination at the initiative of the employer. This situation was contrasted with the position where an employee is told to resign or he or she will be terminated. The Full Bench in Pawel went on to state that all of the circumstances, and not only the act of the employer, must be examined. In ABB Engineering Construction Pty Ltd v Doumit22 (ABB Engineering) a Full Bench of the AIRC acknowledged that there is a narrow line between conduct that leaves an employee no real alternative but to resign, and conduct that cannot cause a resignation to be a termination at the initiative of the employer, but stressed the importance of the line being:
“…closely drawn and rigorously observed. Otherwise the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of the resigning employee, rather than that of the employer, that gives rise to the termination.” 23
[28] The Full Bench in ABB Engineering went on to stress the need for an objective analysis of the employer’s conduct in cases where that conduct is said to have been the principal contributing factor in the termination of employment. The Full Bench in O’Meara said that these cases require that there 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 doing so, in order that there be a termination of employment at the initiative of the employer. 24
Abandonment of employment
[29] The concept of abandonment of employment is not new to employment law. It is a term that is often loosely used, or used without consideration of the effect of the abandonment upon the employment relationship or the contract of employment. Generally, abandonment arises in circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent. There are cases where it has been held that the conduct of the employee in abandoning his or her employment has brought the employment to an end so that there has been no termination at the initiative of the employer. In contrast, there are cases where it has been held that abandonment on the part of an employee constitutes repudiation of the employment contract, and that the election of the employer to accept the repudiation is the action which brought about the termination of employment. There are also cases where the focus has been on whether or not conduct on the part of an employee constituted abandonment of employment, and because of the findings in relation to this point, there was no requirement to consider whether the abandonment per se brought about the termination of the employment.
[30] As Professor Stewart has observed:
“It also appears that a contract may be terminated by abandonment. This occurs where an employee walks off the job or fails to return from a period of authorised leave, in circumstances that make it reasonably apparent they no longer intend to be employed. This might well be analysed as repudiation by the employee, so that the contract is actually terminated by the employer when accepting that the employment has ended. But there are decisions to the effect that termination by abandonment does not constitute a ‘dismissal’ or ‘termination’ by the employer.” 25
[31] At common law it is well established that the concepts of termination of employment and the discharge of a contract of employment are different, and that it does not follow that because a wrongful dismissal is effective to bring the employment relationship to an end, it also discharges the contract of employment. 26 There is also authority for the proposition abandonment of employment is conduct that constitutes repudiation of the contract of employment, and that acceptance by an employer of the repudiation brings the employment relationship to an end, rather than the abandonment itself.
[32] In Visscher v The Honourable President Justice Giudice 27 (Visscher) the High Court was considering the effect of repudiation on the contract of employment. The majority noted the practical difficulties inherent in an employee refusing to accept repudiation of an employment contract but maintained that:
“In principle however, it remains the case that an unaccepted repudiation does not terminate a contract.” 28
[33] Among the authorities cited by the majority in Visscher in support of this proposition, was the following passage from the judgement of Lord Oliver of Aylmerton in Rigby v Ferodo 29 which touches on issues relevant to abandonment of employment:
“Whatever may the position under a contract of service where repudiation takes the form either of a walk-out by the employee or a refusal by the employer any longer to regard the employee as his servant, I know of no principle of law that any breach which the innocent party is entitled to treat as repudiatory of the other party’s obligations brings the contract to an end automatically. No authority has been cited for so broad a proposition and indeed [counsel for the appellant] has not contended for it. What he has submitted is that where there is a combination of three factors, that is to say, (a) a breach of contract going to an essential term, (b) a desire in the party in breach either not to continue the contract or to continue it in a different form and (c) no practical option in the other party but to accept the breach, then the contract is automatically brought to an end. My Lords, for my part, I have found unable either to accept this formulation as a matter of law or to see why it should be so. I entirely fail to see how the continuance of the primary contractual obligation can be made to depend on the subjective desire of the contract-breaker and I do not understand what is meant by the injured party having no alternative but to accept the breach. If this means that, if the contract-breaker persists, the injured party may have to put up with the fact that he will not be able to enforce the primary obligation of performance, that is, of course, true of every contract which is not susceptible of a decree of specific performance. If it means that he has no alternative to accepting the breach as a repudiation and thus terminating the contract, it begs the question. For my part, I can see no reason in law or logic why, leaving aside for the moment the extreme case of outright dismissal or walk-out, a contract of employment should be on any different footing from any other contract as regards the principle that ‘an unaccepted repudiation is a thing writ in water and of no value to anybody’.” 30
[34] In Ellis v Conaust Ltd 31 Murphy JR dealt with the case of an employee who failed to comply with the provisions of an industrial instrument in relation to taking sick leave, and refused to attend a medical practitioner as requested by his employer or to return to work. The employer in that case took the view that the employee had abandoned his employment and that this had brought about the termination. Murphy JR said:
“The concept of abandonment of employment is only a species of conduct which can be characterised as repudiation of the employment contract. The issue here is to ascertain whether what happened is a termination of the employment at the initiative of the employer. Such an exercise requires an analysis of what happened to ascertain what was the real causal event which gave rise to the termination of employment...It follows from what I find was the unreasonable refusal of the Applicant to respond to Respondent’s requests in February that these actions constituted a repudiation of his contract of employment. The repudiatory actions were accepted by the Respondent in the letter of 23 February where it characterised them as abandonment of the contract. The Respondent has in my view wrongly labelled what it did; the legal effect is the same however. I find that the actions of the Respondent in accepting the repudiation of the contract by the Applicant was the operative cause of the termination of the Applicant’s employment.” 32
[35] There are two decisions of Full Benches of the AIRC dealing with abandonment of employment, which refer to this issue.
[36] In Searle v Moly Mines Limited 33 (Searle) a Full Bench of the AIRC considered whether employment was terminated at the initiative of the employer, in circumstances where the employer contended that termination had occurred by virtue of the applicant’s abandonment of her employment. In that case there was a provision in a written contract of employment setting out circumstances that constituted abandonment of employment. The Full Bench stated that the statutory test then posited by s.643 of the Workplace Relations Act 1996 relates to termination of the employment relationship not termination of the contract of employment and cited authorities to the effect that although a wrongful dismissal terminates the employment relationship, the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal.34 In Searle it was held that the employee had not in fact abandoned her employment and that a breach of the contractual term dealing with abandonment, would not necessarily result in the termination of her employment.
[37] The Full Bench in Searle also made a number of observations which are relevant to the present case. Relevantly, the Full Bench noted that determining whether employment is terminated at the initiative of the employer does not involve the merits of a case and that:
“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.” 35
[38] The Full Bench also noted that:
“Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs, or the reasonableness of their conduct.” 36
[39] Further, the Full Bench said:
“We have already indicated that the statutory test relates to the termination of the employment relationship. The application of common law principles relating to termination of the contract of employment may not yield the correct answer in any given case.” 37
[40] A similar comment was made in GlaxoSmithKline Australia Pty Ltd v Gauci 38 (GlaxoSmithKline). That case involved an alleged abandonment of employment in circumstances where there was an industrial instrument which dealt with this matter. The Full Bench found in that case that the employee had not abandoned employment. It was also contended for the employee that even if the employee had abandoned his employment, that would not constitute termination, but rather repudiation of the employment contract, and that because the employer had elected to treat the repudiation as terminating the contract the employment was terminated at the employer’s initiative. In relation to this argument the Full Bench said:
“This argument raises an issue of potential significance in any case involving conduct by an employee which constitutes repudiation of the contract of employment. It is not necessary to decide the issue in this case, however, because we have not disturbed the finding that there was no abandonment and therefore the question of repudiation does not arise. But we observe that the argument may blur the distinction between termination of employment and termination of the contract of employment. The question posed by the statute is whether the employment was terminated at the initiative of the employer. An analysis based on contractual notions of repudiation and acceptance may not always correspond with the statutory concept.” 39
[41] It is also the case that contractual notions of repudiation and acceptance may not always correspond with the provisions of industrial instruments dealing with abandonment of employment. Abandonment of employment is variously dealt with in a range of industrial instruments. A number of examples serve to illustrate that an issue may arise as to whether termination of employment is brought about by the operation of the provisions of an industrial instrument or whether the act that terminates employment is the acceptance by the employer of the repudiation of the employment contract, constituted by the abandonment.
Example 1
[42] The Manufacturing and Associated Industries and Occupations Award 2010, provides as follows at clause 21:
21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.
21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.
21.3 Termination of employment by abandonment in accordance with clause 21-Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later. 40
Example 2
[43] In GlaxoSmithKline the relevant industrial instrument contained the following provision:
“The absence of the employee from work for a continuous period and exceeding three working days without the consent of the employer and without notification to management shall be prima facie evidence that the employee has abandoned his or her employment. Termination of employment by abandonment in accordance with this sub clause shall operate from the date of the last attendance at work in accordance with the considerations at clause 8(f)(iii).”
Example 3
[44] In Searle the employee’s contract of employment provided that:
“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.
[45] In Georgievski v Caroma Industries Limited 41 Simmonds C considered an award provision in virtually identical terms to that in Example 1 above, and said that such a clause was a “deeming” provision. Notwithstanding the common law position with regard to repudiation of the employment contract such provisions may operate, so that employment is terminated automatically, regardless of whether the employer accepts the repudiation. If, on an objective view of the facts in cases involving such provisions, the employee is found to have abandoned employment, then it may also be found that termination of employment was not initiated by the employer.
[46] However, clauses of the kind set out in Examples 2 and 3 above do not in my view, operate automatically. In a case where it is contended that an employee has abandoned employment pursuant to a provision of the type in Examples 2 and 3 above, it is necessary to objectively examine all of the facts in order to determine whether employment was terminated at the initiative of the employer.
Conclusions
[47] The terms of Ms Sharpe’s employment contract are almost identical to those considered in Searle. As the Full Bench said in that case, the breach of such a clause would not necessarily result in the termination of the employment. 42 It is necessary to examine the facts to determine whether Ms Sharpe’s conduct breached the clause, and whether the termination of Ms Sharpe’s employment was at the respondent’s initiative.
[48] On any view of the facts, Ms Sharpe did not breach the terms of her employment contract by abandoning her employment effective 6 November 2009. Ms Sharpe had a series of medical certificates indicating partial incapacity, and a certificate indicating that she was totally incapacitated for work from 5 August to 5 November 2009. Ms Sharpe also made claims for Workers’ Compensation during the periods of her incapacity. Notwithstanding this, Winchester Young and Maddern on behalf of MCG wrote to Ms Sharpe requiring her to return to work on 5 October 2009 – one month before the expiry of the medical certificate Ms Sharpe had previously provided.
[49] Taylors on behalf of Ms Sharpe corresponded with Winchester Maddern and Taylor on 3 and 16 October 2009, making it perfectly clear that Ms Sharpe was claiming to be totally incapacitated for work and that she would continue to be so for the foreseeable future. In short, Ms Sharpe provided an explanation for her absence, and notice to MCG and its legal advisors that the absence was likely to be of some duration. Clearly, Ms Sharpe went to some effort and expense to ensure that her legal representatives provided MCG with an explanation for her absence, thereby indicating that she intended to be bound by any obligation to inform MCG about the basis upon which she was absent from the workplace. This conduct does not constitute abandonment of employment.
[50] If further evidence that Ms Sharpe did not abandon her employment on 6 November 2009 is required, then the letter from Winchester Maddern and Young dated 10 November advising that MCG required Ms Sharpe to return to work makes it clear that MCG did not believe that Ms Sharpe had abandoned her employment. That letter was written by a firm of solicitors, not by an employer in the absence of legal advice about repudiation, acceptance and waiver. Even if there was a breach of the employment contract on the part of Ms Sharpe which could constitute abandonment of employment (and in my view on 6 November 2009 there was not) the breach was waived by the letter dated 10 November 2009.
[51] I am also of the view that Ms Sharpe did not abandon her employment effective 16 November 2009. At that point, the solicitors acting for Ms Sharpe had informed MCG in no uncertain terms that Ms Sharpe was psychologically and physically incapable of returning to work. There was a medical certificate to that effect which expired on 5 November 2009. It is true that there are some gaps in the correspondence between the firms of solicitors, and some failure on both sides to acknowledge and respond to correspondence. However, MCG and its legal advisors should well and truly have been placed on inquiry about Ms Sharpe’s capacity to work and that she was in the process of obtaining further certification to support her absence from work. MCG and its legal advisors should also have been in no doubt that Ms Sharpe was evincing an intention to continue to be bound by her employment contract by virtue of her providing advice that she was unfit to return to work, within a relatively short space of time after being directed to return to work.
[52] MCG was also informed that Ms Sharpe was attempting to obtain a further medical certificate to support her continued absence. Further, the report of a psychiatrist giving a very limited prognosis in relation to Ms Sharpe’s return to work had been provided to MCG on 10 November 2009 – one week before the alleged abandonment was said to have taken effect. That a medical certificate was not provided at this point does not in itself, constitute abandonment of employment. Ms Sharpe through her solicitors had communicated extensively about her incapacity. That Ms Sharpe did not provide further medical certificates subsequently, is hardly surprising, given the letter of 20 November advising Ms Sharpe that her employment had been terminated.
[53] It is submitted for MCG that in considering whether the applicant has abandoned her employment, it is necessary to consider not only her subjective intention, but also whether it was reasonable in the circumstances for MCG to conclude that she had abandoned her employment. It was also submitted that it is relevant that Ms Sharpe’s application for Workers’ Compensation in respect of psychological injury was refused, and that the respondent does not accept that Ms Sharpe has such an injury.
[54] I do not accept this submission. The reasonableness of MCG’s belief is not determinative of whether Ms Sharpe abandoned her employment. Further, whether or not MCG accepted that this incapacity was genuine, is not an issue that goes to the question of whether or not Ms Sharpe abandoned her employment. What is relevant are the facts, not MCG’s subjective beliefs or the reasonableness of the conduct of either party. On the facts as they were reasonably ascertainable at 6 November 2009, Ms Sharpe had not abandoned her employment.
[55] I do not accept that Ms Sharpe moving to Bundaberg constitutes evidence of her intention to no longer be bound by her employment contract. As submissions for MCG point out, this move occurred in September 2009. There is no evidence that the relocation is permanent. At that point, Ms Sharpe had a medical certificate indicating that she was totally incapacitated for work from 5 August to 5 November 2009. The fact that an employee who is totally incapacitated chooses to move to another location during the period of the incapacity, is not necessarily an indication that the employee is abandoning her employment.
[56] I am also of the view that there is a contradiction in the submissions for MCG, which accept on the one hand that Ms Sharpe has medical reports indicating that she will not be able to return to work in the mining industry in the short or long term, while on the other hand maintaining that she has absented herself from work without reasonable cause, in a manner that constitutes abandonment. Such a submission in this case is not sustainable.
[57] The reality in this case is that MCG, through its legal representatives, considered that the applicant’s conduct constituted repudiation of her employment contract, and elected to accept the repudiation and to terminate the contract. This is apparent from the letter to Ms Sharpe’s solicitors dated 20 November 2009, stating that MCG had instructed that notice be given terminating Ms Sharpe’s employment, as a result of the repudiation of her employment contract. This letter was not written to an unrepresented employee by an employer unfamiliar with the law in relation to repudiation and acceptance. The letter of 20 November 2009 was written by a firm of solicitors to another firm of solicitors and I can see no basis for finding that the letter has any meaning other than what is clearly stated. This act on behalf of MCG was intended to bring the employment to an end, and did so. That this is what occurred is also confirmed in the Employer’s response to Ms Sharpe’s application for an unfair dismissal remedy filed on 8 January 2010, where it is clearly stated that Ms Sharpe’s employment was terminated by MCG Pty Ltd.
[58] Accordingly, I have concluded that Ms Sharpe was dismissed from her employment by MCG within the meaning in s.386 of the FW Act. The jurisdictional objection is dismissed, and I find that there is jurisdiction for Fair Work Australia to deal with the application by Ms Sharpe for an unfair dismissal remedy filed on 4 December 2009.
COMMISSIONER
Appearances:
Mr J. Shaw on behalf of the Applicant.
Mr C. Massey on behalf of the Respondent.
Hearing details:
2010.
Brisbane:
February 11.
1 Exhibit 1 Affidavit of Joseph Shaw JS 1
2 Exhibit 2 Affidavit of Craig Worsley Annexure “CW10”.
3 ibid “CW12”
4 ibid “CW13” and “CW14”.
5 ibid paragraph 10.
6 ibid “CW16”.
7 ibid “CW17”.
8 ibid “CW19”
9 ibid “CW20”
10 ibid “CW21”
11 ibid “CW22”.
12 ibid “CW23”.
13 11 August 2006, AIRC Giudice J, Watson SDP, Cribb C, Print PR973462 at [19].
14 (1995) 62 IR 200.
15 Mohazab v Dick Smith Electronics op.cit. at 205.
16 ibid at 205-206.
17 Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 at 259 per Moore J cited in Mohazeb v Dick Smith Electronics op.cit at 205.
18 APESMA v David Graphics Pty Ltd Unreported, Industrial Relations Court of Australia per Wilcox CJ, 12 July 1995 cited in Mohazeb v Dick Smith Electronics op.cit at 206.
19 (1996) 67 IR154.
20 ibid at 160-161.
21 Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C.
22 Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C.
23 ibid at [13].
24 Op. cit. at [23]
25 Stewart A, Stewart’s Guide to Employment Law, Second Edition, The Federation Press, Sydney 2009 at p. 283.
26 Visscher v The Honourable President Justice Giudice [2009] HCA 34 (2 September 2009) per Heydon, Crennan, Kiefel and Bell JJ at [53]; Byrne and Frew v Australian Airlines (1995) 185 CLR 410 at 427 per Brennan CJ and Dawson and Toohey JJ; Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 471 and 454; Williamson v The Commonwealth (1907) 5 CLR 174 at 185; and Lucy v The Commonwealth (1923) 33 CLR 229 at 237, 238, 249, 252 and 253.
27 [2009] HCA 34 (2 September 2009).
28 ibid at [55] per Heydon, Crennan, Kiefel and Bell JJ.
29 [1988] ICR 29.
30 ibid at 34-35 citing Howard v Pickford Tool Co Ltd [1951] 1 KB 417 at 421 per Asquith LJ.
31 [1995] IRCA 668 (9 December 1995)
32 ibid.
34 Byrne and Frew v Australian Airlines (1995) 185 CLR 410 at 427 per Brennan CJ and Dawson and Toohey JJ; Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 471 and 454; Williamson v The Commonwealth (1907) 5 CLR 174 at 185; and Lucy v The Commonwealth (1923) 33 CLR 229 at 237, 238, 249, 252 and 253.
35 Searle v Moly Mines Limited [2008] AIRCFB 1088 at [24] per Giudice J, O’Callaghan SDP and Cribb C.
36 ibid at [38].
37 Ibid at [39].
38 [2008] AIRCFB 439 PR981788.
39 ibid at [19].
40 MA000010
41 L Georgevski v Caroma Industries Limited PR910736 [2001] AIRC 1135 (30 October 2001).
42 Searle v Moly Mines Limited op. cit. at [36].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR995314>