Failed to respond to employer — abandoned employment


Failed to respond to employer — abandoned employment

A truck driver’s unfair dismissal claim was rejected by Fair Work Australia, because he abandoned work when he failed to respond to his employer’s repeated attempts to get him to return to work.


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A truck driver’s unfair dismissal claim was rejected by Fair Work Australia, because he abandoned work when he failed to respond to his employer’s repeated attempts to get him to return to work. Although he put his failure to contact his employer down to having suffered a ‘breakdown’, no medical evidence was submitted to support this claim.
On 3 April 2011, the truck driver advised his employer, Point 2 Point Logistics Pty Ltd, that he was unable to attend his scheduled shift because his daughter was ill. The operations manager authorised the absence and arranged for someone else to perform his duties.
Over the next few days, the operations manager made repeated attempts to contact the driver to ask him when he could return to work, but to no avail — his mobile and home phones rang out on every occasion, and there was no response from his partner’s mobile either. The operations manager also asked another employee — the driver’s friend — to try to contact him, and even went so far as to personally visit the driver’s home, where he left a business card on both the front and back door requesting an urgent response.
On 6 April, the driver telephoned the operations manager to apologise for being out of contact and to explain that he had been facing ‘significant personal issues’.The manager was sympathetic, but noted that the driver had been in contact with a co-worker over the same period. He then told the driver that the general manager had advised him he could treat the driver as having abandoned his employment, given that he had not contacted the company for three days. Instead of acting on this advice, he offered the driver an alternative route, which would allow him to spend less time away from home. The driver accepted the offer, and was told that this new arrangement commenced the next day.
On 7 April, the driver failed to show for work, but later telephoned the operations manager, who rejected his claim that he hadn’t known when his shift started. Further, he advised the driver that in light of ongoing complaints from senior management about the driver’s phone usage, the costs of personal calls from his work-issued mobile had been deducted from his wages. Although this issue had been raised with the driver in the past, he said he disagreed with the action and wanted to discuss the matter ‘face to face’. The operations manager told him to bring his work phone in the next day.
Later that day, the driver emailed the operations manager to advise him he would be in the next day to return his phone, and to collect a print out of his payslips, as well as copies of his letter of appointment and signed contract.
The driver did not attend work on 8 April, and two days later advised the general manager that he was going to file an unfair dismissal claim. The general manager advised the driver that his employment had not been terminated and that, in effect, he had abandoned his employment when he did not contact his employer for three days. However, the general manager gave the driver a week to decide whether he wished to continue working for the company. Consistent with this, he sent the driver an email on 18 April, advising him that his position was being held for him but he needed to know what the driver was doing, urgently, because he was using agency drivers in the meantime. The worker did not respond to the email and the matter proceeded to a hearing before Fair Work Australia.
‘Misunderstanding’, and failure to respond to work offer
Before Commissioner Gooley, the driver claimed he was unfairly dismissed on 7 April 2011, when the operations manager told him ‘Just bring your f***ing phone with you, this is the last f***ing time that [you’ll] step foot in the office’. The operations manager conceded that he was ‘annoyed’ at the time because he had ‘bent over backwards’ to secure for the driver a shift that best suited his personal circumstances. However, he denied either swearing at the driver or telling him that it would be the last time he would set foot in the office.
The driver conceded he had ignored his employer’s attempts to contact him from 3 to 6 April and that this was ‘unacceptable’. However, he explained that he had suffered a ‘breakdown’ because he was under a lot of stress and his partner was suffering from depression. No medical evidence was produced to support his claim and his partner gave evidence that he’d turned off his phone because ‘he had enough of [the operations manager] not listening to him about not wanting to drive interstate’.
On the evidence, Cmr Gooley accepted that a ‘heated conversation took place between the driver and the operations manager on 7 April. However, he did not accept that the operations manager had terminated his employment during the phone call. Instead, he found that the driver had ‘misunderstood’ the operations manager’s demand for him to bring his work phone with him the next day.
‘Nothing in Mr Leeson’s conduct before or after this phone call suggests that he wanted to terminate the Applicant’s employment,’ he said.
‘I accept his evidence that he was expecting the Applicant to attend work the next day when they would talk the matters over.’
Further, Cmr Gooley found that the worker made no reference to termination in the email he sent to the operations manager subsequent to their conversation on 7 April.
‘I find that the Applicant failed to attend work and failed to respond to his employer’s attempts to get him to return to work,’ he said.
‘He abandoned his employment. The Applicant’s employment ended because he did not attend work.’
Having determined there was no termination of employment at the initiative of the employer, Cmr Gooley dismissed the driver’s unfair dismissal application.
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