Abandonment of employment not dismissal

Cases

Abandonment of employment not dismissal

It was the applicant’s conduct of abandoning her employment that finally brought the employment relationship to an end and not her alleged dismissal.

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10/08

It was the applicant’s conduct of abandoning her employment that finally brought the employment relationship to an end and not her alleged dismissal.

Commissioner Hoffman in the AIRC considered the evidence and concluded that the former employee no longer wished to be employed and so dismissed her unfair dismissal application.

The applicant claimed that her termination of employment was harsh, unjust or unreasonable. The employer responded by claiming that the application was frivolous, vexatious or lacking in substance as she had abandoned her employment and was not dismissed.

Intention to be no longer employed

The Commission found that the applicant abandoned her employment. The applicant was not authorised to be absent from work. The applicant failed to have reasonable or adequate communications with the employer. There was no consent to her working elsewhere. Her intention to no longer be bound by the terms of her contract of employment was obvious.

The termination of her employment was not ultimately ‘at the initiative of the employer’ for the purposes of s643 of the Workplace Relations Act 1996.

Consideration of evidence

The Commission held that the employer did not intend to bring the employment to an end until it explored all other reasonable avenues over a long time. The applicant still had a position but it was required to be carried out in Canberra. Details of the position, its level and removal costs could all have been more fully explored had the applicant been prepared to have reasonable communications. She was not so prepared, and did not, for almost a year.

The employer’s actions of requiring the applicant to work in Canberra while being aware of her family ties to Brisbane could possibly have resulted in bringing the employment relationship to an end but not probably so. Two days after starting work with IBA, the employer informed the applicant that despite her failure to apply for Leave Without Pay or resign, it still considered her to be an ongoing employee. This was to assist her with employment opportunities with it. The applicant’s reply included that she was 'highly unlikely to want to return to the respondent'. Further, she returned the employer’s assets including; credit card, telephone charger, mobile, personal computer and printer. These were hardly the actions of an employee intending to stay on with the respondent.

The employer had the power under s25 of the Public Service Act 1999 to determine where duties are to be performed. It is required to act reasonably in so doing, including consideration of the employees circumstances. Even if the termination was found to be at the initiative of the employer, then the termination was not harsh, unjust or unreasonable, under s643 of the Workplace Relations Act.

For a high-level, long-term APS employee to not know or to find out if taking up a position outside the public sector without having leave approval, and presumably in writing, and/or in accordance with the Department’s procedures, was not credible evidence. The applicant was aware of the process for applying for other forms of leave such as annual leave or sick leave.

The applicant, while invited to do so by the Department, did not contact People Branch to explore the possibility of other job options even if it was within the Queensland Government. Despite the applicant’s reservations or perceptions about the Branch and/or certain of its personnel, this was another instance of her not being prepared to reasonably explore all opportunities that may have been available. Such action, or lack of it, is not reasonable.

There was no substantive evidence of the applicant incurring any, or significant, financial loss. The applicant did not seek reinstatement.

Conclusion

The Commission considered all the facts and circumstances of the applicant’s termination of employment and made a broad judgement based on ‘a fair balance between the interests of the employee and the interests of the employer'.

The Commission found that if the applicant’s employment was terminated it was not harsh, unjust or unreasonable.

Susan Dorothy Lodder v Department of Families, Housing, Community Services and Indigenous Affairs [2008] AIRC 684 - AIRC (Hoffman C) - 29/9/08.


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