Alleged abandonment of employment must be explored by employer

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Alleged abandonment of employment must be explored by employer

The AIRC, in a recent judgement, has made it clear that employers must clarify an employee’s intentions where there is any room for doubt about whether they have abandoned their employment.

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The AIRC, in a recent judgement, has made it clear that employers must clarify an employee’s intentions where there is any room for doubt about whether they have abandoned their employment. 

A Melbourne security firm claimed an employee abandoned his employment after he refused to take up a new position because it involved five hours travelling time on top of a 12-hour shift.

Background

The employee, a security guard for Kirwan Security Services, applied under s170CE of the Workplace Relations Act alleging unfair termination.

The employee said he had worked for Kirwan for nearly three years - initially as a casual, then as a permanent employee. No written warnings of a disciplinary kind had been received during this period. He normally worked eight-hour shifts at a site in Bayswater which was close to his home, but then Kirwan started transferring him to other sites.

The applicant was then advised of a proposed new work location in Footscray West working 12 hour shifts. The advice letter concluded: 'Could you please indicate your acceptance of this placement by signing below...'. 

As well as indicating he did not accept the position, the employee noted: 'I have done a trial trip to the site today. It would take me approximately 2.5 hours each way to the site by car, train and a walk. This would mean 17 hours for a 12 hour shift, leaving me only eight hours for sleep and rest. Hence, this site is not viable.'

The company terminated him saying his refusal to accept the position amounted to abandonment of employment.

The employee on oath stated that he was not aware that a refusal to accept the position would be taken as abandonment of employment as he did not wish to lose his job.

Findings

Commissioner Mansfield said the primary issue was whether the employee should have been assessed as abandoning his employment as a consequence of refusing the Footscray West position. 

He said there was no indication in the employer’s correspondence that non-acceptance of the position would be regarded as having abandoned his employment. No evidence was provided which established that the employee was advised of the serious consequences of non-acceptance or of any alternative positions which may have been available. 

The Commissioner quoted 'Body v Godfrey Hirst Australia' which stated that '...For an employee to abandon his/her employment it must be clear that the employee has evinced an intention to no longer be bound by the terms of the contract of employment.'

Commissioner Mansfield found that the correspondence did not indicate that non-acceptance would be taken as a repudiation of the employment contract. 'Where there is room for doubt as to an employee's intention regarding maintaining or abandoning the employment contract an employer has a responsibility to enquire further. If the employer fails to enquire there is a risk that in subsequent proceedings the termination may be found to be harsh, unjust or unreasonable.'

He found there was no valid reason for the employee’s termination and that the actions of Kirwan Security Service were harsh, unjust or unreasonable.

Advice to the Commission from the company was that Kirwan Security 'Finished in Business (sic) on 30th June 2003...'. However, Australian Securities and Investments Commission records showed that the company remained in business. Also, employees continued to receive wages with Kirwan Group Services on the pay slips.

The Commissioner ordered reinstatement at a location within a reasonable distance and time to travel from his home taking into account factors such as the practicability of public and private transport and the length of daily working hours. 

The company was to treat the employee as if his employment was continuous and pay him the amount of remuneration lost due to the termination.

See: Chelvarajah v Kirwan Security Services - AIRC - Mansfield C - PR935865 - 13 August 2003.

 

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