Termination of employment and abandonment

Although it is not an immutable rule, the Fair Work Commission will ordinarily support an employer in an unfair dismissal case by regarding the employer as having a valid for a dismissal, as in the case from which the following extract is drawn.

“Valid reason

[129] Valid in this context is generally considered to be whether there is a “sound, defensible or well-founded” reason for dismissal and one that is not “capricious, fanciful, spiteful or prejudiced. 26 In considering whether a reason is valid, the requirement is to be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations.

[130] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the employer’s position. The question the Commission must address is whether there was a valid reason for dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).

[131] The reason for termination must be defensible on an objective analysis of the relevant facts. Other than in cases of summary dismissal by a small business,27 it is not enough for an employer to establish that it had a reasonable belief that termination was for a valid reason.28 In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. The employer bears the evidentiary onus of proving conduct on which it relies.

[132] Facts justifying dismissal which existed at the time of the termination can be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.29

[133] A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.30

[134] In this matter, the reason for dismissal advanced by the employer in the letter of termination was “abandonment of employment” within the meaning of cl 23(b) ‘Unauthorised Absence’ of the Agreement.

[135] According to the letter, the particulars relied upon was “your failure to provide your supervisors with a definitive date of your return to work”.

[136] The employer asserts that this failure was a breach of contractual obligations.

[137] Noting that for the purposes of s 387(a) the relevant issue is whether there was a valid reason for dismissal and not necessarily the reason as notified by the employer, I turn firstly to the reason relied upon – abandonment of employment.

[138] The legal principles associated with abandonment of employment are well established. The test is an objective one: whether the employee’s conduct is such to convey to a reasonable person in the position of the employer, and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment. 31

[139] In this matter, the concept is more specifically defined by cl 23(b) ‘Unauthorised Absence’ of the Agreement, which provides:

“If an employee is absent from work for three (3) consecutive working days without authorisation, and without notifying the company, their employment will be deemed to have been abandoned.”

[140] Was Mr Green’s absence between 19 March 2022 and 26 April 2022 authorised by Citic?

[141] This period encompassed two full swings. 32

[142] Two days into the first swing (which commenced 15 March) Mr Green returned to Victoria despite his roster requiring him to work until 28 March.

[143] I have found that on 18 March 2022 Mr Evans agreed to Mr Green returning to Victoria and not completing the swing but on the condition that his absence be taken as a form of leave to which he was entitled and that he apply for leave and secure that agreement before leaving the mine site.

[144] Mr Green did not meet these conditions. He did not apply for leave before leaving the site. He did not obtain the approval of a supervisor or superintendent to take leave before leaving the site. Further, at no time after having returned to Victoria and during the remainder of the swing did Mr Green apply for leave or obtain approval for leave.

[145] As Mr Green did not meet the conditions advised by Mr Evans to leave the site, his absence during the swing was not authorised.

[146] The second swing was scheduled from 5 April to 25 April. Mr Green’s roster was to work two weeks from 5 to 18 April (inclusive), and be off from 19 to 25 April (inclusive).

[147] I have found that Mr Green was told by Mr Dewar on 29 March 2022 that he (Mr Green) was next rostered on 5 April 2022 and was required to be at work unless his absence on leave had been approved.

[148] I have also found that Mr Green did not return to the mine site on 5 April 2022, made no contact with Citic prior to 5 April 2022 (despite being asked to do so), and did not apply for leave or obtain approval for leave either prior to or during the period of this second swing.

[149] As Mr Green did not meet the conditions advised by Mr Dewar to be absent from the site, his absence during the second swing was not authorised.

[150] Did Mr Green notify Citic of his absences?

[151] Leaving aside that his absences were not authorised, Mr Green had notified Mr Evans on 18 March that he would be absent for the remainder of the first swing.

[152] During the period of the second swing Mr Green was unresponsive for significant periods of time, but not for the entire period.

[153] He spoke to Mr Dewar on 29 March, 10 April and 11 April, Mr Youd on 10 April and Mr Crawford on 18 April, though only once (11 April) on his initiative.

[154] In broad terms, Citic were not unaware of Mr Green’s whereabouts or the reason why he was choosing to remain at home. To that extent the employer was aware of his absence, but had not authorised it.

[155] However, the promises Mr Green made to apply for leave never materialised.

[156] Further, the request made orally by Mr Crawford on 18 April 2022 and then in writing by Mr Turner on 20 April 2022 that he provide a “definitive date of return to site” was not complied with. I have found that Mr Green, when pressed by Mr Crawford on 18 April, said words to the effect “hopefully June”. This fell short of a definitive date. I have found that the first mention of a specific date by Mr Green was following dismissal, when Mr Green belatedly proffered to Mr Evans (when pressed) “7 June” but was told that it was all too late.

[157] Whilst it is open on the facts to find that Mr Green abandoned his employment by failing to attend work without approval or prior notice, I need simply to determine whether a valid reason for dismissal existed.

[158] The employer’s direction to not be absent from work unless on authorised leave was lawful and reasonable.

[159] The employer’s direction that he attend work for the roster commencing on 5 April 2022 unless leave had been applied for and authorised was lawful and reasonable.

[160] The employer’s direction that he provide a “definitive date of return to site” was lawful and reasonable.

[161] Mr Green was sent emails, text messages, voice messages and he missed calls. Despite being absent from work and on specific notice that he needed to regularise his absence, he largely left it to Citic managers to initiate communication to ascertain his intention. He only responded when he wanted to and on his terms. He belatedly called Mr Dewar back on 10 April, and then quickly on 11 April when he realised he would no longer be paid for not being at work. He chose not to look at his emails for almost two weeks from 29 March to 10 April despite being told on 29 March that Mr Dewar was emailing him important information about the types of leave he could apply for and his obligation to apply for leave if absent from work.

[162] I do not accept Mr Green’s submission that he reasonably expected his supervisor or manager to apply for leave on his behalf. Irrespective of whether this had occurred when he was moved from a workers’ compensation absence to an annual leave absence in December 2021, it was specifically not what he was directed to do in March and April 2022. Both in writing and orally, by the mine manager, superintendents and his supervisor, he was told that he needed to apply for leave and have leave authorised, and that he would not be granted unpaid leave of absence.

[163] Mr Green was not ignorant of this obligation. In his evidence he readily conceded: 33

“you can’t leave the site unless you are under some type of leave”

[164] To the extent Mr Green advanced reasons for not doing so, they are not convincing. In evidence he claimed that he was limited with technology and didn’t have access to a hard copy leave form. There is no evidence he asked for one. Inconsistently, he claimed that he had a half completed leave form on 18 March (evidence which I have not accepted). He did not apply for leave electronically or by email. His claim that he was waiting for a doctor’s appointment to sustain a carer’s leave application does not explain why he did not apply for annual leave and was a claim proffered a month after he had already left the workplace without authorisation.

[165] The overall conclusion I draw from the evidence is that Mr Green displayed an indifference to his employment obligations, including to the specific and repeated directions to not be absent without authorisation, to attend work on 5 April unless leave had been approved and to provide a definitive date of return.

[166] Having left the workplace (and the State) to attend to his domestic circumstances, Mr Green then allowed his personal circumstances to override his obligations to Citic and cloud his judgement. He saw contact from Citic as being pushy and unwelcome when in fact it was reasonable management action taken in a reasonable manner.

[167] In material ways, Mr Green was torn. Understandably, he wanted the income earned from working in the mining industry but his family circumstances had changed and absence from family was now less tolerable with his wife working. He also wanted Citic to give him permission to be back in Victoria but was reluctant to draw down further on his annual leave accrual to do so. This in part explains his failure to apply for annual leave. In evidence he described annual leave accruals as “like money in the bank…it’s a buffer”. 34

[168] Aside from the fact that he did not apply for leave, Mr Green nonetheless assumed that he had leave entitlements to take him through to June 2022, and would remain home for as long as he thought he would be paid. He had 195 hours of annual leave accrued. 35 Even including five days carers leave it is not clear that this would have been sufficient to cover absence until June. However, as Mr Green stated in evidence:36

“I was trying to…stay at home as long as I can with my family.”

[169] In the face of express advice to the contrary, Mr Green thought that his supervisors and managers would regularise his absence and allow him to stay in Victoria and keep paying him until his financial situation, and not his employment obligations or the calming of family circumstances, forced him back to the Pilbara.

Conclusion on valid reason

[170] To fairly assess whether a valid reason existed, Mr Green’s conduct needs to be objectively assessed against his contractual obligations as a whole and considered in the context of surrounding circumstances applicable at the time of relevant conduct.

[171] There was a valid reason for dismissal.

[172] Objectively considered, there was a sound, defensible and well-founded reason. The employer did not manufacture or mislead Mr Green nor act capriciously or for prejudicial reasons.

[173] The failures by Mr Green to comply with lawful and reasonable directions to apply for leave, to attend for work unless absence was authorised and to provide a definitive date of return to work were breaches of his employment obligations which, individually and collectively provided a valid reason for dismissal.

[174] A valid reason weighs against a finding of unfair dismissal. 37”

Green v Citic Pacific Mining Management Pty Ltd (2022) FWC 2455 delivered 14 September 2022 per Anderson DP