Abandonment of employment a bar to unfair dismissal claim

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Abandonment of employment a bar to unfair dismissal claim

An employee was held to have abandoned his employment so he was unable to claim that he was unfairly dismissed. A full bench of the Tasmanian Industrial Commission noted that abandonment of employment was not quantified in time, but required an analysis of what happened at the relevant time and a consideration of the intent of the employee.

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An employee was held to have abandoned his employment so he was unable to claim that he was unfairly dismissed. A full bench of the Tasmanian Industrial Commission noted that abandonment of employment was not quantified in time, but required an analysis of what happened at the relevant time and a consideration of the intent of the employee.
 
The employee, a timber worker, appealed against the decision of Commissioner Abey who had found that the conduct of the employee subsequent to 3.30pm on Thursday 23 May amounted to a repudiation of his contract of employment. The commissioner found that it was reasonably open for the employer to conclude that he had abandoned his employment.
 
Conclusions
 
A full bench of the Commission heard the appeal. The real issue was whether the employee had abandoned his employment or whether the termination was at the initiative of the employer.
 
Commissioner Abey found that the behaviour of the employee 'subsequent to 3.30pm on Thursday 23 May amounted to a repudiation of his contract of employment.' That behaviour related to the employee's evidence that he failed to attend the meeting with the employer, that he was asleep at the scheduled time and awoke an hour or so later but made no attempt to contact the employer until the following Monday morning (27 May).
 
The commissioner found that it was the absence from 3.30pm onwards on Thursday 23 May which constituted the abandonment of employment and found that '...it was reasonably open for the employer to conclude that Mr Sharam had abandoned his employment.'
 
The full bench found no error or that the commissioner acted on any wrong principle. Abandonment of employment is not quantified in time but requires an analysis of what happened at the time and a consideration of the intent of the employee. The behaviour in this case was irresponsible and somewhat cavalier, the lack of any attempt to explain such behaviour to the employer in a reasonable period of time, particularly when such opportunity was provided was in the view of the commissioner a repudiation of the contract of employment.
 
In the Commission's view the behaviour of the employee prior to the 3.30pm meeting, when considered with his behaviour after the scheduled meeting, could possibly have justified termination for serious and wilful misconduct.
 
In dismissing the appeal the full bench considered the submissions and the grounds of appeal and were satisfied that the findings of the commissioner were open to him. In all the circumstances his conclusions were reasonable and just in light of the evidence and submissions before him in the matter below.
 
See: Adrian Bruce Sharam v Blue Tiger Logging Pty Ltd- FB of Tas IC (Leary P, Watling DP and Shelley C) - (T10436 of 2002) 3 April 2003.
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