Whether termination of employment was harsh, unjust or unreasonable - Termination arising from unauthorised absence

[1] This decision relates to an application made by Mr Gary Tozer ('the Applicant') pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (Cth) ('the Act') in relation to his termination of employment from Centrelink ('the Respondent'). The Applicant alleges his termination of employment was harsh, unjust and unreasonable.

[2] The Applicant had been employed with the Respondent for a period of approximately 11 years, commencing in 1996. At the time of his termination, the Applicant was engaged at the Centrelink, Tweed Heads Office, as a member of the Working Age Participation (WAP) Team.

[3] The termination of employment directly relates to a period of unauthorised absence taken by the Applicant between 22 January 2007 and 30 January 2007.

[4] The Applicant applied for annual leave and long service leave for this period in the first week of January. The leave was refused by the Respondent based on the operational needs of the team and the organisation.

[5] The Applicant made another application for this same period of leave. The request for the leave was again considered by the Team Leader and the Customer Service Centre Manager. However, after additional endeavours were made to consider the request, it was communicated to the Applicant that the application for the leave which was lodged very late, was unable to be granted on this occasion.

[6] The Applicant failed to report for work on 22 January 2007. He did not return to work until 31 January 2007, despite him being contacted by the Respondent's manager and instructed that his leave was unauthorised and to return to work. His employment was terminated subsequent to a 'Show Cause' process for this unauthorised leave. During this 'Show Cause' process, the Applicant stated that he had required the leave to have discussions with his sister in Newcastle, regarding plans for the care of his parents who had become ill. The Respondent contended that the Applicant had required the leave to attend a golf tournament.

[7] The progress of this matter to hearing was delayed due to the Applicant's difficulty in meeting the Directions that were set. Accordingly, prior hearing dates had to be abandoned and further Amended Directions issued and further hearing dates set.

[8] The Applicant was represented by Mr G. Delaney, Solicitor, O'Neills Solicitors and the Respondent by Mr C. Murdoch, Counsel, instructed by Ms F. Dempsey, Australian Government Solicitor. The matter was heard in Brisbane on 26 and 27 February 2008, with a final hearing by agreement on 14 March 2008.

[9] Whilst this decision may not make reference to all of the evidence, submissions and documentation, all such things have been considered in the determination of this matter.

[10] The following legislative provisions are relevant to the consideration of this matter:

"643 Application to Commission to deal with termination under this Subdivision

(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a) on the ground that the termination was harsh, unjust or unreasonable;

(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(g) any other matters that the Commission considers relevant."

[11] It was submitted on behalf of the Applicant that the Applicant's termination of employment was harsh, unjust or unreasonable within the meaning of the Act.

[12] It was advocated that "the entire process concerning the application for leave, it's considerations and decision were tainted, thereby tainting the ultimate decision to terminate." [1]

[13] It was stated that leave applications prior to the time of this leave, had been dealt with on an 'ad hoc' basis. It was submitted that the Applicant had adopted the same process by which he had been seeking and taking leave over the course of his 11 years of service.

[14] It was submitted that on prior occasions the Applicant had taken leave which, at the time, was unauthorised and that this leave had later been validated and not classified as an 'unauthorised' absence.

[15] It was emphasised that the Applicant had approximately 11 years of service without receiving any disciplinary procedures during this time and that he was experiencing 'psychological problems' at the time of taking the leave.

[16] During the course of the hearing, it was also submitted on behalf of the Applicant that financial constraints did not allow him to amend his pre-booked travel plans. In addition it was stated that there was a pressing need, due to his father's ill health, to resolve with his sister the plans for his father's care and financial affairs.

[17] It was submitted on behalf of the Applicant that given the manner in which his previous periods of leave had been assessed and then had later been authorised, the Applicant's state of mind at the time of the leave in question, that on this occasion based on past practice he presumed the leave would be validated. The Applicant contended that the termination of employment is harsh, unjust and unreasonable and that disciplinary action of a less severe nature may only have been warranted.

[18] The Respondent stated that the request for leave was communicated promptly to the Applicant via the Infolink system and orally by Ms Witham, Team Leader, Tweed Heads Office. The Applicant sought reconsideration of the decision to reject the leave. Various endeavours were made by the Respondent to accommodate the leave request, but this was not possible. He was informed orally that the further request was rejected and this was confirmed by email on 17 January 2007.

[19] The Applicant further requested to take the leave and was notified again on 19 January 2007 by Mr Prendergast, Manager, Tweed Heads Office, that the request was not successful. Further, he was notified that any absence during the period would be unauthorised. Ms Witham also confirmed the refusal of the leave on 19 January 2007. Ms Witham provided evidence that the Applicant stated that "he didn't care and that he was going anyway." [2]

[20] The Applicant did not report for work on 22 January 2007, accordingly Mr Prendergast contacted him to return to work as the leave was unauthorised. The Applicant acknowledged that the leave was unauthorised, but that he would have to face the consequences upon his return to work. The Applicant returned to work on 31 January 2007.

[21] The Respondent asked the Applicant to 'Show Cause' by 8 February 2007, why his employment should not be terminated. The date of the response was extended to 16 February 2007 on the Applicant's request. The Applicant responded on this date. The consideration of the matter was suspended on 19 March 2007 for 28 days due to illness in the Applicant's family.

[22] The Respondent advised the Applicant that his employment was terminated effective from 30 April 2007. The Respondent terminated the Applicant's employment pursuant to s.29(3)(c) of the Public Service Act 1999 (Cth) due to non-performance of duties. The Applicant was paid five weeks wages in lieu of notice and any remaining statutory entitlements.

[23] In determining whether the matter was harsh, unjust and unreasonable, the Commission must have regard to the matters set out in s.652(3) of the Act. Consideration of the elements of s.652(3), as they apply to the facts, is set out below:

Section 652(3)(a) - Whether there was a valid reason for the termination related to the employee's capacity of conduct

[24] The Respondent asserted there was a valid reason for the termination based on the fact that the Applicant was on unauthorised leave for the period 22 to 30 January 2007.

[25] The Respondent submitted that the reason for the termination was based on the following circumstances. These reasons were substantiated by the evidence:

• he had proffered in early January the reason for taking the leave as his desire to attend a golf tournament;

• he had been informed that due to staffing requirements, the fact that others had previously been refused leave for that period and due to the expected workload during that period, that he was not allowed to take the leave;

• the operational concerns were justified and reasonable;

• he had been offered, and rejected, the possibility of taking a smaller number of days during the period;

• he had been told prior to taking the leave that any absence during the period would be unauthorised;

• he took the leave and was requested to return, he refused the request despite being aware his absence was unauthorised and that he would have to face the consequences of his decision;

• prior to taking the leave he never raised compassionate grounds for the reason for requiring the leave. The Applicant concedes that he did not at any time state to Mr Prendergast or Ms Witham that he needed the time off to travel to Newcastle due to his father's illness. He accepted, however, that he did refer to the Golf Tournament;

• in any event, he has never adequately explained his belated allegation that he required six working days leave to travel to Newcastle to discuss arrangements for the care of his Queensland-based parents with his sister during the relevant period. His sister, who was to have given evidence as part of his case was ultimately not called as a witness. In the premises the Commission can infer that she would not have given evidence that would have assisted the Applicant's case.

The lack of merit in the Applicant's, belated claim of the need to travel to Newcastle due to his father's illness is demonstrated by the following:

• Mr Prendergast and Ms Witham are adamant that they were not informed at any time that the need for leave was due to the Applicant's father's illness. At all material times the reason proffered was the golf tournament;

• the Applicant badgered Ms Witham and Mr Prendergast about the leave. He even flagged the possibility of resignation. It could reasonably be expected that if the real reason for the leave was his father's illness he would have raised this during these many discussions. He did not. In fact nor did he expressly raise this point in his response to the show cause notice. The inference that it was not a motivating factor is overwhelming; [3]…"

[26] For the reason for termination to be valid it must be "sound, defensible and well-founded". [4] To assess whether the reason for the termination was valid, the conduct of the Applicant must be considered. In this case, the Applicant clearly proceeded on an unauthorised period of leave and refused to return to work after the Respondent instructed him to do so.

[27] The request for the leave was late. Leave applications had already been granted to a number of employees at this peak period of leave. A number of employees had also had their leave applications refused. The Respondent had reviewed all possibilities for granting the leave. Their decision not to grant the leave was operationally based and justified on the evidence. This week involved a high demand on the office due to the public holidays and the increased number of transactions to be processed in the shorter week.

[28] The Applicant, on the evidence, [5] had not conveyed that he required the leave to have appropriate discussions with his sister regarding plans for his father's affairs and well-being. An inference can be drawn from the fact that the witness statement of the Applicant's sister's evidence on this issue was withdrawn.

[29] Further, on the balance of probabilities, given the Applicant had only recently been to visit his sister, it was unlikely that they would have required ten days to have these alleged discussions. The dates of leave married with the golf tournament dates [6] and the Applicant had communicated his intention to participate in the tournament.[7] If the purpose of the leave was to deal with his father's affairs, the offer of a smaller period of leave (than six working days) would have been reasonable.

[30] Furthermore, it is reasonable to consider that if these discussions regarding his father's affairs were essential, then the Applicant would have conveyed this underlying reason to the Respondent, and the necessity for the leave.

[31] Accordingly, there was a valid reason for the termination. The employee was notified that the leave was not granted and the reasons for the refusal. The employee proceeded on unauthorised leave and was told to return to work immediately. He defied this lawful request.

Section 652(3)(b) - Was the Applicant 'notified of the reason'?

[32] The Applicant was asked to 'Show Cause' why his employment should not be terminated. The 'Show Cause' process was extended at the Applicant's request. The Applicant was notified in writing of the reason for the termination of his employment, by correspondence.

Section 652(3)(c) - Was the Applicant given an 'opportunity to respond'?

[33] The Applicant was provided with an opportunity to respond (by 8 February 2007) to the Show Cause Notice that was issued to him on 1 February 2007. The timeframe for the response was amended to 16 February 2007, to allow the Applicant to deal with health issues his parents were experiencing.

Section 652(3)(d) - If the termination related to unsatisfactory performance by the employee - was the employee warned about the unsatisfactory performance before the termination?

[34] The central issue to this termination of employment was conduct rather than capacity. Accordingly, it was not a matter where warnings were warranted. However, the Applicant was clearly notified prior to the termination that the leave was unauthorised. When he took the unauthorised absence from the office, he was requested to return to work. He refused to return to work in the knowledge that he would have to 'face the consequences'.

[35] Whilst it was submitted on behalf of the Applicant that prior periods of unauthorised leave had been condoned and subsequently the administrative steps had been undertaken to confirm the leave, the incident at hand was a clear breach of authority. The Applicant was aware that the Respondent had considered his requests for leave and was unable to accommodate such period of leave and that his absence was unauthorised. Further to this the Applicant had a conversation with the manager of the office, whereby the manager clearly told him to return to work.

[36] The Applicant was aware that the consequence of his actions in taking the unauthorised absence could lead to termination. These consequences were detailed in the 'People Management Handbook', as set out in the Centrelink Agreement.

Section 652(3)(e) and (f) - The size of the Employer on the termination affect of procedures and whether there were dedicated human resource management specialists

[37] The Respondent is a large employer with access to specialist human resource management advice, accordingly, these issues would not be taken into account as mitigating factors to the manner in which the termination of employment process was undertaken. In any event, the process was not procedurally flawed. The Applicant was afforded the notification that his employment was in jeopardy due to his proceeding on the unauthorised absence and not returning from that absence when requested. He was afforded a clear 'Show Cause Process' and was notified of the reasons for the dismissal in writing.

Section 652(3)(g) - Any other matters the Commission considers relevant?

[38] It is appropriate to consider whether the termination of employment was appropriate in all of the circumstances or whether it was harsh, unjust or unreasonable. [8]

[39] The Applicant confirmed in cross-examination that he had his attention drawn to the proper procedures for taking leave by the Respondent in the months prior to the breach. He also agreed he was aware of the possible consequences for taking such unauthorised leave.

[40] There was no clear case substantiated on behalf of the Applicant that unauthorised absences and defiance of lawful directions by his Employer had been condoned or tolerated. The leave was clearly not granted, the Applicant was aware that his absence would cause further pressure on the team during this demanding operational period.

[41] Furthermore, the reference on behalf of the Applicant that he was experiencing a 'psychological problem' in the period prior to taking the leave, was also not substantiated. It was also submitted on behalf of the Applicant that there was reasonable financial reasons as to why the travel bookings should be discharged at this time. The cross-examination of the Applicant on his relevant financial records did not justify this alleged motivation for taking leave.

[42] The Applicant was well aware that he was on a period of unauthorised absence as the leave requests had all been refused. There was no reason for the Applicant to anticipate that the leave would be approved on his return.

[43] The Applicant's record of employment and length of service has been taken into account and whether a lesser penalty could have been applied has been considered.

[44] The Applicant clearly defied the direction to return on 22 January 2007. The Applicant remained on unauthorised leave until 31 January 2007. His conduct was in open defiance of the lawful direction and was evidence of a complete repudiation of the employment contract. The Respondent manages a large workforce and could not be expected to condone the Applicant's conduct.

[45] In all of the circumstances the termination of the Applicant's employment was not 'harsh, unjust or unreasonable'.

[46] The Application made pursuant to s.643(1)(a) is dismissed. I Order accordingly.

G. Delaney, Solicitor, O'Neills Solicitors, for the Applicant.

C. Murdoch, Counsel, instructed by the Australian Government Solicitor, for the Respondent.

Printed by authority of the Commonwealth Government Printer

[1] Applicant's final submissions, page 1.

[2] Exhibit 8, Statement of Ms Patricia Witham, paragraph [21].

[3] Respondent's submissions, 12 March 2008, page 4.

[4] Appeal by Intercontinental Ship Management P/L against decision [8 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 at 465 to 466.