Unfair dismissal and mobility of employees

A Full Bench of the Fair Work Commission has dismissed claims of unfair dismissal by a number of employees who were dismissed when they declined to move interstate upon the mine at which they were employed was closed and were thus dismissed. Their employment contracts provided for them to work as directed at various mine sites in several States of Australia.

“CONSIDERATION

Relevant statutory provision

[33] The meaning of the term “dismissed” is defined in s.386(1) of the FW Act, which is in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

 

[34] Subsections 386(2) and (3) do not have relevance to the matters in consideration in this decision, with the subject matter of those subsections relating to persons employed under various limited term arrangements.

[35] We will consider Grounds 1, 2 and 3 together, followed by Ground 4.

Grounds 1, 2, and 3 – Termination on the employer’s initiative/Failure to comply with direction, abandonment/Forced resignation

 

[36] Ground 1 argues that the Deputy President erred in finding that each Appellant’s employment with OS was not terminated on the Respondent’s initiative within the meaning of s.386(1)(a). Ground 2 argues about concomitant findings in the Decision that the Deputy President was in error to find there had been a failure by the Appellants to comply with a lawful and reasonable direction from OS and communicated such to OS; that such conduct was a renunciation of their contractual obligations, an abandonment of their employment and a repudiation of their contracts of employment. Ground 3, put as an alternative to Ground 1, argues the Deputy President was in error to find the Appellants were not forced to resign because of conduct, or a course of conduct, engaged in by OS.

[37] The Decision makes the following relevant findings:

• As to the contracts of employment: “[t]he contracts for the [Appellants] with OS are clearly effective without a term limiting the job of each Applicant to Mt Arthur” with the contracts of employment entirely in writing such that “the rights and obligations established in the contracts exclusively determine the relationship between the parties”.[52]

• The Point of Hire Term is only engaged if an employee is “required” and “directed” by OS to work at another site “across the East Coast of Australia”.[53]

  • OS “required” the Appellants to work at Blackwater and “directed” them to do so. The Deputy President reached this conclusion on the basis of several matters:
    • These matters were the announcement by Mr Cole, General Manager of OS, on 20 July 2021 followed by information provided by OS to each employee. Amongst other things employees were required to complete an Employee Preference form and were told their “role with OS Production as a Production Technician across the East Coast of Australia will continue after 1 November 2021. OS Production continues to require Production Technician roles to be performed across the East Coast hub, with currently operating deployments being in Queensland”. The information reinforced to employees their engagement at Mt Arthur was to shortly finish; “Operations Services is no longer required at Mt Arthur Coal past 1 November 2021. There are no options for Operations Services team members to remain working at Mt Arthur Coal with OS”.

Employees were informed of the consequences of not making a choice about their future role; “The Allocation Letter went on to explain that the [Appellants] had a choice “confirming either … 1. You still do not wish to continue your employment with OS. 2. You have changed your mind and will commence work at the Mine allocated in this letter on the allocated commencement date” [emphasis added].

Finally, the Allocation Letter informed the Appellants that if they did not return a signed copy of the letter to OS by 22 October 2021, “this indicates to OS Production that you do not intend to continue with your employment. In these circumstances, your employment with OS will come to an end in accordance with your choice with effect on 1 November 2021”

 

  • These things led the Deputy President to find the Appellants were directed about a Blackwater deployment; that each failed comply with a lawful and reasonable direction; and abandoned their employment. Although OS accepted the Appellants repudiation of their contracts of employment it was their renunciation which ended their employment relationship. OS neither terminated the Appellants’ employment nor forced their resignation:

“[82] Because I am satisfied on the basis of the written evidence that OS “required” the [Appellants] to work at Blackwater and “directed” them to do so, I do not need to decide OS’s alternative argument that an oral direction was given to some of the [Appellants] in their conversations with Mr Witney and/or Mr Nguyen.

[83] None of the [Appellants] returned a signed Allocation Letter to OS, nor did any of them attend work at Blackwater in accordance with the directions given to them in the Allocation Letter. Each of the [Appellants] told OS that they were not prepared or willing to work at Blackwater. It follows that the [Appellants] failed to comply with a lawful and reasonable direction and refused to work at the new East Coast deployment at which OS required them to work in accordance with the Point of Hire Term. The [Appellants]’ conduct in this regard constituted a renunciation of their contractual obligations – specifically, of the fundamental obligation to work at East Coast sites as directed by OS. That obligation was fundamental because OS’s business is as a services provider to multiple mine sites in Australia, the [Appellants]’ jobs with OS were not site specific, and OS’s business requires that it be able to deploy its employees to work at multiple locations. The conduct of the [Appellants] conveyed a refusal to work in accordance with the promises given in their contracts of employment.

[84] Put another way, the [Appellants] abandoned their employment by refusing to work at their new deployments at Blackwater.

[85] OS accepted the [Appellants]’ repudiation of their contracts of employment. However, it was the [Appellants]’ renunciation which effectively brought the employment relationship between them and OS to an end. This is not a case in which it was action on the part of OS that was the principal contributing factor which resulted, directly or consequentially, in the termination of the [Appellants]’ employment. Accordingly, the [Appellants]’ employment with OS was not terminated on OS’s initiative within the meaning of s 386(1)(a) of the Act.

[86] As to the [Appellants]’ argument under s 386(1)(b) of the Act, it is rejected on two grounds. First, the [Appellants] did not resign. Secondly and in the alternative, even if it was concluded that the [Appellants] resigned, they were not forced to do so because of conduct, or a course of conduct, engaged in by OS.

[87] None of the [Appellants] informed OS that they were resigning or had resigned. Their conduct in that regard is consistent with the advice given to most of the [Appellants] by the ME Union not to “resign from their employment” with OS and not to sign anything.

[88] The absence of an express statement of resignation is not fatal to the [Appellants]’ contention that they resigned, for the test is an objective one which depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.

[89] OS points to the fact that none of the [Appellants] gave OS four weeks’ written notice of their resignation in accordance with the express terms of their employment contract. I do not give much weight to the absence of four weeks’ written notice from the [Appellants] to OS of their resignation in determining whether or not the [Appellants] did in fact resign. There is no doubt that an employee or an employer can terminate their employment relationship without giving notice in accordance with the terms of any applicable contract of employment.

[90] It is contended by the [Appellants] that their conduct in not accepting the deployment to Blackwater demonstrated that they had resigned. I disagree. Their conduct in that regard, coupled with the fact that none of the [Appellants] returned the Allocation Letter to inform OS of their decision not “to continue … [their] employment with OS”, would have demonstrated to a reasonable person in the position of the parties that they were not willing to comply with a direction given to them in accordance with their employment contract to be deployed to Blackwater. In my assessment, the objective position, based on what OS and each Applicant did and said, in light of the surrounding circumstances, was that none of the [Appellants] resigned from their employment with OS.” (footnotes omitted)

 

[38] We accept the Appellants’ contracts of employment as exclusively determining the relationship between the parties (noting that Mr Smith’s circumstances require consideration in the context of Ground 4). The Point of Hire Term is explicit, providing that “[d]uring your employment you may be required to work on multiple sites across the East Coast of Australia as directed by the Company. If your deployment is inter-State, you will be provided with advance notice of 4 weeks (unless a shorter period is mutually agreed)”. There is no evidence that any of the employment contracts were varied to remove or limit the term. As it is, the relevant construction of the Term is clear; there may be a requirement on an employee to work on multiple sites across the East Coast of Australia; that requirement may be the subject of a direction from OS; and if a deployment is inter-State (presumably from the employee’s current work location) they are entitled to be provided with advance notice of 4 weeks, unless a shorter period is agreed.

[39] We have considered the debate had below and dealt with in the Decision, but not relied upon by the Appellants in these proceedings, as to whether there was an implied term in the contracts of employment that the Appellants’ jobs were at Mt Arthur only.[54] The Decision, at [75], correctly records how the tribunal should analyse the situation; the term must not contradict any express term and must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it. The Decision proceeds to find, correctly in our view, that no term is to be implied:

“The contracts for the [Appellants] with OS are clearly effective without a term limiting the job of each Applicant to Mt Arthur. The term sought to be implied into the contracts is not necessary to give business efficacy to the contracts. Finally, an implied term must be so obvious that it goes without saying. It is not obvious that the jobs of the [Appellants] must be limited to Mt Arthur only. OS plainly desired the flexibility to move its workforce around to a range of sites across the “East Coast of Australia” at which its services were required.”[55]

 

[40] The Decision found, and the Appellants do not say otherwise, that “Blackwater is clearly one of the “multiple sites across the East Coast of Australia” to which an Applicant could be deployed under the Point of Hire Term”.[56]

[41] There were the following relevant interactions between OS and the Appellants.

  • 20 July 2021 – from the commencement of the first shift employees were notified of the cessation of production services at Mt Arthur and that OS “would support and assist them and their family to relocate closer to their next placement”. In pre-start meetings the FAQ document was distributed which included statements that:
    • Mt Arthur team members “will not be required at Mt Arthur Coal past 1 November 2021”;
    • “All our employees will have ongoing employment with OS at an alternative deployment location”;
    • With reference to an Employee Preference Process, the process “will ask for your thoughts” regarding the employee’s top 3 preferred alternate deployment locations, their access to relocation support; questions, concerns and feedback; and any “personal circumstances such as family and caring responsibilities we should take into consideration”. Further,

“Through this change we are supporting OS employees to make decisions based on their personal needs. We will seek to meet your preference of location, but we have to balance this with ensuring business requirements are met.

An eForm has been created for the EPP and will be made available from today for employees to complete. This can be accessed from any BHP or personal electronic device. A paper-based form is also available for those unable to complete this online. All forms must be completed by Friday, 6th August 2021.”

 

  • The FAQ document also stated “If you do not wish to continue employment with OS at another deployment or elsewhere with BHP, you will be required to resign”;
  • Commencing on 20 July 2021 – OS provided the Appellants with access to the Employee Preference Form for them “to complete and return”;
  • 22 July 2021 – the MEU wrote to OS raising a number of matters, including that formal consultation was required on the subject and taking issue with the statement that “If you do not wish to continue employment with OS at another deployment or elsewhere with BHP, you will be required to resign”. The MEU contended it was an inaccurate statement of the legal position to suggest an employee not seeking an alternate deployment would be required to resign,

“As explained above, such an employee is not required to resign. Rather, their employment with OS would come to an end by reason of their employment being terminated at the employer’s initiative. Consequently, such an employee would be entitled to redundancy pay.”

 

  • Between 25 July 2021 and 1 September 2021 – There were further exchanges of correspondence between OS and the MEU;
  • In September 2021 – OS held one-on-one discussions by phone or in person with affected employees, including the Appellants “to discuss relocation arrangements”;
  • In October 2021 – “Phase 1 Conversations” were conducted with all but one of the Appellants (Jason Lerch, who was not able to be contacted). Preparation by OS for the discussions included development of an FAQ sheet addressing matters such as resignation; the potential end of employment; redundancy; and whether signature was required of the OS letter and what would occur if it was not signed. The Allocation Letters from OS to each Appellant, including Mr Lerch, followed these conversations. Each letter contended the employee was “employed in a continuing role of Production Technician across the East Coast of Australia. You were not employed to work at only one particular site”.

The Allocation Letter is in largely the same terms to each Appellant, although the nominated shift roster varied for each person (with this letter being the one sent to Scott Ambrose);

“Dear Scott

NOTIFICATION OF CONTINUING ROLE WITH OPERATIONS SERVICES

As you know, the OS production services at Mt Arthur Coal will conclude on 1 November 2021.

I refer to our 1: 1 meeting on 20 September 2021 where you were advised of your options to choose on completion of the MAC services. At that meeting you indicated you did not wish to continue your role at another OS services location.

Nature of your role with OS across the East Coast of Australia

You are employed in a continuing role of Production Technician across the East Coast of Australia. You were not employed to work at only one particular site. As stated in your employment contract with OS Production, during your employment as a Production Technician, you may be required to work on multiple sites across the East Coast of Australia as directed by OS Production. This is a fundamental term of your employment contract.

This means that even though the OS production services at Mt Arthur Coal Mine will end on 1 November 2021, OS Production continues to require you to perform your role at other sites across the East Coast of Australia, with currently operating services being in Queensland.

The details of the continuing work we have available for you if you wish to reconsider your choice are as set out below for your reconsideration.

Site Blackwater Mine

Crew C Crew

Proposed Initial Roster 7 Days, 7 Off, 7 Nights, 7 Off; Thursday start.

Reporting to Linda Hamlin, Supervisor Production

Commencement Date** 07 November 2021**

First Rostered Shift

Commencement Date at 18 November 2021

Blackwater Mine

** Date recorded in HR SAP system only, in alignment with OS Payroll Cycles.

This work is available in accordance with your contract.

If you have changed your mind and have any concerns about the location or proposed roster, including the impact it will have on your family and caring responsibilities, please raise this with your current line leader for consideration by no later than 22 October 2021.

Of course if it is still your choice to leave your employment with OS Production on completion of its MAC services, and if the work at Blackwater Mine does not suit your personal circumstances, or for any other reason, we need to confirm that now. OS Production’s preference is that you, and all other OS Production employees, remain with OS Production after the conclusion of the OS production services at Mt Arthur Coal.

However I wish to make it clear, there has been and will be no decision to make you or your role redundant. This means you are not entitled to any redundancy pay and OS Production is not required to consider any redeployment opportunities with any other BHP entities.

What do you need to do now?

By 22 October 2021, please return a signed copy of this letter, to your line leader confirming either:

  1. You still do not wish to continue your employment with OS.
  2. You have changed your mind and will commence work at the Mine allocated in this letter on the allocated commencement date and will contact your line leader within 24 hours to arrange discussions for commencing at Blackwater Mine.

If you do not wish to continue your employment or you do not return a signed copy of this letter by 22 October 2021, this indicates to OS Production that you do not intend to continue with your employment. In these circumstances, your employment with OS will come to an end in accordance with your choice with effect on 1 November 2021.

Should you have any questions or concerns, please direct these to your Line Leader. Thank you for your ongoing contribution and commitment to the Operations Services team.

Yours sincerely

Tim Witney

Manager Production

I, Scott Ambrose confirm the following:

�� I will commence work at {mine} as per the details set out in this letter

�� I do not wish to continue my employment with OS Production

Signed: ________________________ Date: ________________________”

 

  • Commencing 22 October 2021 – “Phase 2 Conversations” were conducted with each Appellant excluding Mr Lerch who again was unable to be contacted. Again, a FAQ script was prepared for those conducting the discussions, and at the conclusion of the conversations each Appellant who participated and Mr Lerch was sent a letter from OS. The letter is in largely the same terms to each Appellant with this being the letter sent to Scott Ambrose;

“Dear Scott

YOUR CHOICE NOT TO CONTINUE YOUR EMPLOYMENT WITH OPERATIONS SERVICES

I refer to my previous letter to you on 12 October 2021 regarding your employment with OS Production.

As you know, you are employed in a continuing role of Production Technician across the East Coast of Australia. You were not employed to work at only one particular site. As stated in your employment contract with OS Production, during your employment as a Production Technician, you may be required to work on multiple sites across the East Coast of Australia as directed by OS Production. This is a fundamental term of your employment contract.

The OS production services at Mt Arthur Coal Mine, where you are currently working with OS Production, will conclude on 1 November 2021 as previously discussed with you. However, you were advised that OS Production continues to require your role to be performed at other sites currently operating services across the East Coast of Australia.

At the meeting held with you on 20 September 2021 you were advised of your options for other deployments on completion of the OS production services at Mt Arthur Coal. At the meeting or after that meeting you indicated you did not wish to continue your role at another OS services location.

My subsequent letter to you on 12 October 2021 advised you OS Production has provided you continuing work at Blackwater. You were asked to return a signed copy of that letter by 22 October 2021 confirming that either:

  1. You do not wish to continue your employment; or
  2. You will commence work at the mine allocated on the nominated commencement date and will contact your line leader within 24 hours to arrange discussions for commencing at the allocated mine.

My letter to you stated that if you did not return a signed copy of my letter by the time requested, this would indicate to OS Production that you do not intend to continue with your employment.

As you have not returned a signed copy of my letter, OS Production understands that you do not intend to continue with your employment.

Your employment with OS Production will come to an end in accordance by your choice with effect on 1 November 2021.

Wages and any accrued but untaken leave will be paid up until that date.

Should you have any questions or concerns, please direct these to your Line Leader.

Yours sincerely

Tim Witney

Manager Production”

 

  • 1 November 2021 – OS Production ceased production services at Mt Arthur and the employment of each Appellant concluded.

[42] The Appellants contend that the deployment to Blackwater was presented as a choice in the Allocation Letters and that such direction as may be contained within the letters was limited;

“… the authoritative instruction or command contained in the Allocation Letter was expressly set out under the heading ‘’What do you need to do know?’’. Plainly, there was no authoritative instruction or command to work at Blackwater. Rather, the Appellants were directed to return a signed copy of the letter to their line leader by 22 October 2021 confirming whether they would choose to select option 1 or 2.”[57]

 

[43] It is then argued that because there was no direction to work at Blackwater the Point of Hire Term was not engaged,

“It follows that the job of each Appellant should have been confined to Mt Arthur, which was the only site where the Appellants had worked for the Respondent. The Respondent ceasing to provide production services at Mt Arthur meant that the Appellants had no more work to perform at Mt Arthur. This circumstance sits comfortably within the meaning of dismissed as defined by s.386(1)(a) of the FW Act.”[58] (footnotes omitted)

 

[44] Several things spring from the letters; such choice as was invited was in the context of the indication given by each Appellant in the Phase 1 Conversations (with the exception of Mr Lerch who could not be contacted for such a meeting) to the effect that they did not wish to continue their role at another OS location. The correspondence though did not merely accept that indication as the end of the matter but reminded each Appellant of the requirement of their employment contract and set out the work proposed for each.

[45] The context of the complete Allocation Letter as well as the steps taken by OS before it was sent and after, and including the letters sent after the Phase 2 conversations, from 22 October 2022 leave little doubt about the parties’ situation as viewed by OS; the work of OS at Mt Arthur would finish on 1 November 2021; the Appellants’ contract required them to be available for work “on multiple sites across the East Coast of Australia as directed by the Company”; each was informed that after work at Mt Arthur ends, “OS Production continues to require you to perform your role at other sites across the East Coast of Australia, with currently operating services being in Queensland”. Reasonably viewed the correspondence requires the Appellants to be available for work in Queensland and to confirm to OS in writing that they either do not wish to continue their employment with OS or that they will be available to commence work at Blackwater.

[46] The principles associated with abandonment of employment are well settled, set out thus by the Full Bench in Re: Abandonment of Employment;

“[21] “Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.”[59]

 

[47] The High Court, in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd, noted in respect of repudiatory breaches, including those termed renunciation, that a breach triggering remedial termination may be of the whole contract or merely a part. It held that the “test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it”[60]

[48] Application of the test for abandonment of employment requires an objective assessment, of “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”.[61]

[49] In this case the Appellants nominated the MEU to be their representative which duly made various representations to OS about the accuracy of its statements including; whether OS was obliged to consult with the union and employees; whether redundancy payments were due; and whether employees should be offered jobs with Mt Arthur Coal Pty Ltd. The MEU also advised “[w]e will be advising all of our members that don’t wish to accept a role with OS in Central Queensland that they should not resign from their employment”.[62] The Appellants, with the exception of Mr Lerch, participated in the Phase 1 Conversations at which OS records each as having “indicated you did not wish to continue your role at another OS services location”.

[50] The Appellants, including Mr Lerch, also received but did not return as directed the Allocation Letters with the same correspondence asserting that OS regarded the Point of Hire Term as meaning that they may be required to work on multiple sites across the East Coast of Australia and that this was a fundamental term of their employment contract. The correspondence was in each case specific, setting out “details of the continuing work we have available for you” – in each case at Blackwater.

[51] We accept the above conduct of the Appellants as evincing their intention to not comply with the obligation under their employment contract to work at Blackwater.

[52] We accept the Deputy President as correct when he found the “choice between cessation of employment and taking up the deployment to Blackwater did not give the [Appellants] a right to reject the deployment and remain employed with OS at Mt Arthur or some other location of their choosing” and that “the allocation of Blackwater as each [Appellant’s] next deployment was an authoritative instruction. It was something which OS “required” to be done and was communicated to the [Appellants] by way of a “direction” within the meaning of the Point of Hire Term”. We accept as well that the “fact that the Allocation Letter spelt out in express terms what would happen if the [Appellants] did not agree to their deployment to Blackwater, namely the cessation of their employment with OS, did not render the “allocation” any less of a “direction” or a “requirement””.[63]

[53] By failing to return a signed copy of the Allocation letter to OS by 22 October 2022 confirming their choice of alternatives the Appellants failed to comply with OS’ requirement. In direct consequence OS was entitled to state to the Appellants the things said in letters sent to each after the Phase 2 Conversations, namely that “[a]s you have not returned a signed copy of my letter, OS Production understands that you do not intend to continue with your employment” and “[y]our employment with OS Production will come to an end in accordance by your choice with effect on 1 November 2021”. We discern no error with the Deputy President’s findings that in not returning a signed Allocation Letter to OS or to attend for work at Blackwater that such was an abandonment of each Appellant’s employment and that while OS purported to accept the repudiation of their contracts of employment the situation was better described as “the [Appellants]’ renunciation which effectively brought the employment relationship between them and OS to an end”.

[54] Appeal Ground 3 posits that the Deputy President was in error to find that the Appellants’ were not forced to resign. We have difficulty with the very foundation of the Ground, since there is no evidence that any of the Appellants resigned their employment. It is well settled that “[t]he question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position”.[64]

[55] The Decision found that none of the Appellants resigned, with none of them informing OS that they were resigning or had resigned. Noting that the absence of an express statement of resignation was not “fatal” to the Appellants’ contention they had resigned the Deputy President then analysed the available objective evidence. He noted, but put to one side, the absence of written notice of resignation from the employees, with there being “no doubt that an employee or an employer can terminate their employment relationship without giving notice in accordance with the terms of any applicable contract of employment”. He then considered whether the Appellants’ conduct in not accepting deployment to Blackwater demonstrated resignation and disagreed since,

“Their conduct in that regard, coupled with the fact that none of the [Appellants] returned the Allocation Letter to inform OS of their decision not “to continue … [their] employment with OS”, would have demonstrated to a reasonable person in the position of the parties that they were not willing to comply with a direction given to them in accordance with their employment contract to be deployed to Blackwater. In my assessment, the objective position, based on what OS and each Applicant did and said, in light of the surrounding circumstances, was that none of the [Appellants] resigned from their employment with OS”.[65] (footnote omitted)

 

[56] We concur with this analysis. There were no express statements of resignation from any of the Appellants. For there to be resignation implied objectively from all the circumstances it could be expected that some or all Appellants engaged with and returned the Allocation Letter or otherwise communicated matters to OS that would have required consideration or response, failing which resignation may be inferred. Koutalis v Pollett provides a case example of where resignation may be objectively inferred,

“In my opinion, the proper inference, having regard to all of the circumstances, is that Mr Pollett resigned in the conversation he had with Mr Koutalis on the morning of 5 May 2014. I am satisfied that what happened was set out, in substance, in the evidence of Mr and Mrs Koutalis. That is because immediately after his conversations with his employers, Mr Pollett went across the road and confirmed, in unequivocal terms, that he had resigned to Mr Malovini. Mr Malovini’s evidence satisfied me that, among other things, Mr Pollett had decided over the previous two weeks of his leave to start up his own business and that he had had enough of dealing with Mr and Mrs Koutalis.”[66]

 

[57] These are positive findings about actual events about which the Court had evidence.

[58] In the context of the matters before him, it was not available to the Deputy President to find that the Appellants were dismissed within the meaning of either limb of s.386; none had their employment terminated on the employer’s initiative and none resigned from their employment let alone resigned through being forced to do so because of conduct, or a course of conduct, engaged in by their employer.

[59] It is unnecessary in this context for us to engage with the submissions made by the Appellants that the distance of Blackwater from Muswellbrook or the closure of State borders forced their circumstances.

[60] It follows from the above reasoning that we do not find either of Grounds 1, 2 or 3 to be established by the Appellants.

Ground 4 – Bradley Smith

 

[61] The Appellants raise in respect of Mr Smith only that the Deputy President was in error in finding he had not been dismissed within the meaning of s.386 since he was party to a contract which specified his work location as Muswellbrook. While being party to a contract containing the Point of Hire Term he was given an “updated offer” which changed the location aspect of his employment to Muswellbrook, the effect of which is that his “employment” for the purposes of s.386(1)(a) is confined to Mt Arthur. The Appellants concede that this matter was not a matter put to the Deputy President, however, argue that since the subject is potentially a jurisdictional error it requires consideration by the Full Bench.[67]

[62] The evidence in respect of Mr Smith includes:

  • On 12 September 2019 he was provided with an offer of employment in the OS Production team of OS Services. The employment was to commence on 3 October 2019 and “[t]he location of this position is outlined in Schedule 1”, with that schedule stating as relevant only the Point of Hire Term, that is;

“During your employment you may be required to work on multiple sites across the East Coast of Australia as directed by the Company. If your deployment is inter-State, you will be provided with advance notice of 4 weeks (unless a shorter period is mutually agreed).”[68]

 

  • The letter of offer required Mr Smith to accept the terms of the offer electronically, which he did.[69]

    • At some time after the offer of employment Mr Smith’s start date was pushed back to 8 October 2019.[70]

  • On 12 October 2020 he was subject to “an updated offer with an effective date of 12 October 2020”. Correspondence on the subject set out certain matters,

“Dear Bradley,

Following recent discussions, we are pleased to offer you the following changes in your employment conditions:

Position Title: Technician Production

Department: OS production MAC C

Location: Muswellbrook

Work Schedule: 4 days on, 3 nights on, 7 off working 12.5 hour shifts.

Reporting to: Jason Waerea, Superintendent Production

Effective Start Date: 12 October 2020

Your terms and conditions of employment will align to your location and roster, including remuneration, superannuation and leave entitlements. For other ongoing terms and conditions please refer to your latest contract of employment. You must comply with the policies and procedures applicable in your new location.

No additional correspondence will be sent by Global Asset Services beyond this notification. If you have any further questions about your terms and conditions, refer to your latest contract of employment or discuss with your leader.

Thank you for your contribution and commitment, we look forward to your continued contribution to the success of the Company.

Yours sincerely,

Global Asset Services

Human Resources”[71]

 

  • The matters set out in the above correspondence are not dealt with in either of Mr Smith’s two witness statements or his oral evidence.

[63] During submissions in the matter at first instance, and in response to a question from the Deputy President about Mr Smith having two contracts, Mr Walkaden confirmed there were two, but that he did not know why or whether there was any material difference between them.[72]

[64] The correspondence set out above does two things of relevance; it refers to Mr Smith’s location as being Muswellbrook, the location of the Mt Arthur mine; and it states that “[f]or other ongoing terms and conditions please refer to your latest contract of employment”. According to the available evidence, the latest contract of employment is the letter of offer accepted by him dated 12 September 2019. The circumstances that led to the 12 October 2020 letter being issued are not in evidence before the Commission. The correspondence is short and to the point; being clearly the summary of some discussions about particular (and unknown) circumstances of Mr Smith. It states briefly his title, work department, location, roster schedule and reporting arrangements. It is not known which of those are “changes” in his employment conditions.

[65] It is also stated that Mr Smith must “comply with the policies and procedures in your new location” (underlining added). While on its face the statement of a new location appears to be an error, since Mr Smith had worked at Mt Arthur since October 2019, the error suggests the correspondence was adapted from a form letter, dealing with circumstances in which an employee might change location. There is no evidence before the Commission that would suggest that the summary was prepared with the intention that it override the greater content of the 12 September 2019 letter of offer and we do not accept that it was so intended.

[66] We conclude therefore that the Point of Hire Term continued to apply to Mr Smith and that there was no error in the Deputy President’s reasoning that he too had not complied with OS’ directions and that his employment ended through abandonment of employment. It follows we do not uphold Ground 4 of the appeal.

CONCLUSION

 

[67] For the reasons set out above we order that:

  • (a) Permission to appeal is granted; and
  • (b) The appeal is dismissed.”

 

Bourke & Clifford V OS MCAP[2022] FWCFB 178