In May 2023 a licenced security officer lodged an application for unfair dismissal. The employer raised a jurisdictional objection, asserting the employee had repudiated his contract by not attending six rostered shifts. The employee had previously been granted an extension of time to file his application, by the Fair Work Commission.
What happened?
In early April 2023, the employee was arrested, had his phone confiscated, charged and ordered by a Magistrate to be held in remand. The employee told the Commission that in his initial phone call, he contacted a friend and asked him advise his “friends and family and if possible my work” of his detention. The employee spent 23 days in the Adelaide Remand Centre before police dropped the charges against him, and he was released from custody.
The employer was unaware that the employee had been arrested or that he was being held in remand. After failing to appear for his first rostered shift after his arrest, the employer tried contacting the employee several times. Unknown to the employee, on the same day an unnamed persons called the employer and identified themselves as the employee’s wife. The caller said the employee had left the country, and would be overseas for at least one month.
The employee failed to attend for subsequent shifts and on each occasion, the employer made attempts to contact the employee. Several days later, the employer wrote to the employee, advising they would have no choice but to consider terminating his employment if he did not respond. One week later, after no response was received, the employer wrote to the employee informing him that by failing to appear for work he had repudiated his contract, and they accepted the repudiation.
Nine days after his release, the employee contacted the employer by text message and phone. His calls were not returned because at this time, he was regarded as a former employee and was not an apparent priority.
During the application, the employee claimed he had taken all reasonable steps to inform the employer of his incarceration, including requesting on multiple occasions that various officials notify the employer of his whereabouts. While in custody, the employee was only permitted to make authorised calls authorised and at the time of his release, his request to phone the employer was still “pending”.
Did the employee abandon his employment?
In his application, the employee maintained:
he had not abandoned his employment, he did not intend to do so, and he took all reasonable steps to notify the employer of his situation.
the employer had acted on incorrect information about him being overseas, and they did not seriously consider his request for reinstatement.
In response, the employer maintained:
The employee repudiated his contract through abandonment, which ended the employment relationship.
Although it had accepted the employee’s repudiation the employer’s act did not make it a dismissal at the employer’s initiative.
While sympathetic to the employee’s circumstances and critical of the actions of the employer after the dismissal, the Commission:
Noted that to have jurisdiction to maintain the application, the employee’s dismissal must be a termination at the employer’s initiative.
Held that the question of repudiation of contract is an objective question, and it is unnecessary to show a subjective intention to repudiate. Therefore, whether the employee intended to repudiate the contract was not a relevant consideration.
Held the requirement for the employee, as a security officer, to attend for work at the appointed place and time was an essential feature of his duties. His failure to attend struck at the heart of his employment obligations.
Further held that the employment contract had been repudiated due to the employee’s failure to attend work at the appointed place and time, the employer’s acceptance of that repudiation did not constitute a termination at the employer’s initiative. Accordingly, the jurisdictional objection raised by the employer was successful. The Commission also went on to find that the dismissal was not unfair.
What do we learn from this?
Although arising from unfortunate circumstances, the Commission made clear that an employee’s intention is irrelevant to the question of repudiation in such task circumstances. Further, while the Commission considered the employer’s “dismissive attitude” to the employee’s attempts to explain his circumstances to be harsh, that harshness occurred at a time after the employment ended. As the Commission perhaps best expressed it “…despite the alleged dismissal quite understandably appearing hard to [the employee] and having harsh consequences compounded by the employer’s uncooperative post-dismissal stance, the alleged dismissal was not, when objectively assessed, harsh, unjust or unreasonable.”
