Summary : Motion to dismiss - whether the Applicant abandoned his employment - ascertaining intention - species of repudiation - actions by employer -- if not abandonment, did Applicant resign, was he still employed or was he terminated at the employer's initiative? - confusion by employer between abandonment of employment claim and misconduct by Applicant - demotion and termination - motion dismissed.

[1] On 14 December 2006, Michael John Allen ('the Applicant') filed an application under s.643 of the Workplace Relations Act 1996 (Cth) ('the Act') in relation to the termination of his employment with Buses Queensland.

[2] On 28 December 2006, the employer filed a Form R28 Notice of Employer's Appearance, stating that the name of the Respondent was not Buses Queensland but Westside Bus Company Pty Ltd.

[3] On 5 January 2007, Westside Bus Company Pty Ltd ('the Respondent ') filed a Notice of Motion to Dismiss the Application for Want of Jurisdiction on the basis that the Respondent employees 100 or fewer employees ('Motion to Dismiss for Want of Jurisdiction').

[4] On the same day, the Respondent also filed a Notice of Motion to Dismiss the Application as frivolous, vexatious or lacking in substance on the basis that the Applicant's employment was not terminated but that he abandoned his employment on Friday, 24 November 2006 ('Motion to Dismiss as frivolous, vexatious or lacking in substance').

[5] The Respondent stated that it objected to conciliation before both of the motions were dealt with by the Commission.

[6] For reasons to do with some element of confusion over the terms of the application, which were the subject of a Directions conference on 9 January 2006, on 6 February 2007, the Commission issued directions for the purposes of dealing with the Motion to Dismiss as frivolous, vexatious or lacking in substance before going on to deal with the Motion to Dismiss for Want of Jurisdiction. The terms of the motion went to the jurisdictional foundation of an application for purposes of s.642 of the Act in respect of the definition of "termination" or "termination of employment", which means:

"termination of employment at the initiative of the employer."

[7] This matter was heard in Brisbane on 6 March 2007.

[8] The Commission heard evidence in the form of witness statements and cross-examination from three witnesses of the Respondent:

• Ms Cheryl Harrop, Trainee Supervisor, Westside Bus Company Pty Ltd;

• Mr Dennis Parry, Operations Supervisor, Westside Bus Company Pty Ltd

• Mr Graham Davis, General Manager, Westside Bus Company Pty Ltd

[9] The Applicant provided a witness statement and also gave evidence at the hearing himself. He called no other witnesses.

[10] As is evident from the above, for ease of understanding, the Applicant in the following discussion refers to the Applicant in the substantive matter, Mr Allen. The Respondent, in turn, refers to Westside Bus Company Pty Ltd.

[11] The bare written submissions and witness statements yielded the following information.

The evidence of Ms Harrop [1] was that on Friday, 24 November 2006, the Applicant returned to the Respondent's depot one hour into his shift and advised Ms Harrop that he was going home. Ms Harrop's evidence was that the Applicant then left his bus in the yard and left the Respondent's premises.

[12] Ms Harrop further stated "I have not heard from him since, even though his name appeared on the "Spare Drivers Shift Roster" for a number of weeks." [2]

[13] Mr Parry gave evidence that he was of the opinion that the Applicant "no longer wished to be employed by Westside Bus Company" on the basis that the Applicant, on what would appear to be Tuesday 28 November 2006, returned his "cash tin and Uniform shirts of his own accord." [3]

[14] Unsurprisingly, the Applicant's written materials gave a different version of events.

[15] The Applicant states that before his shift on 24 November 2006, he noticed that he had been left off the Respondent's roster. He contacted Mr Parry who is the Bus Controller at the Respondent's Redbank depot to query this and was told by Mr Parry that "he had been instructed by Graham Davis, General Manager Bus Queensland, to take me [the Applicant] from the roster." [4]

[16] The Applicant further states that he asked Mr Parry whether he had been sacked. Mr Parry's response was that the Applicant needed to contact Mr Graham Davis.

[17] When the Applicant contacted Mr Davis the following day, and asked whether he had been sacked, the Applicant states that Mr Davis responded by saying "what do you think." [5] The Applicant's evidence is that he asked Mr Davis a number of times if he had been sacked and Mr Davis eventually responded by saying that he had been sacked.

[18] The Applicant's evidence is that Mr Davis stated the reason the Respondent had been sacked was that "he was informed by a third party that I said I was going to bring the company to its knees by Christmas." [6] Mr Davis would not tell the Respondent who that third party was.

[19] It is important to bear in mind that the motion now before the Commission requires the Commission to determine whether or not the Applicant abandoned his employment. An employee who abandons his or her employment must by his or her actions give evidence of an intention to repudiate the contract of employment by no longer wishing to perform that contract, by way of non-attendance at work and without reasonable explanation or notice.

[20] This is a species of repudiation which an employer might accept consequentially as bringing the contract of employment to an end. It is distinguishable from other forms of contractual repudiation for reason that the employment contract is repudiated intentionally by the conduct of the employee, as objectively discerned. [7]

[21] Other conduct by an employee might be found to constitute repudiation, but it will lack the objectively discerned intent on the employee's part to no longer perform the contract of service. Such conduct is the kind which is subject to evaluation at s.652(3)(a) of the Act. In such circumstances, rather than an objective determination of the intention on the part of the employee to repudiate the contract, the evaluative task before the Commission will be to determine whether there was a valid reason for the action taken by the employer to bring the employment contract to an end. In this regard, it is the validity of the employer's action in initiating the termination of employment that is subject to evaluation. This is because without such action having been taken by the employer the employment relationship would have continued.

[22] However, as will be discussed below, it is not always the case that a distinction of this kind is readily maintained.

[23] As said above, the determination of the intention of an employee to abandon his or her duties is an objective undertaking.

[24] In this regard, in Pawel v Australian Industrial Relations Commission the Federal Court stated (albeit in relation to a former Act) as follows:

"The limitation in s 170CE (1) is not expressed in terms of the belief, opinion or satisfaction of the Commission."

[25] Whether or not an employee abandoned his or her employment, then, is a finding of fact. Such a finding itself turns on whether the relevant employee intended to repudiate the contract of employment by failing to perform in accordance with its terms, and whether that intention on the employee's part was at his or her own initiative, or else was it consequential of the conduct of the employer (and without which the employee might have continued to perform the contract).

[26] What are the facts as they have been adduced over the course of the hearing itself?

[28] The Applicant had conducted himself in a manner in the days prior to the day on which he allegedly abandoned his employer which gave cause for concern by the Respondent. In essence, he had been overheard to say that he would be bringing the Respondent's company "to its knees". [9] Whatever the intention or context of these words, which were not in themselves challenged, the Respondent decided to remove the Applicant from the normal or allocated roster (on which he had worked systematically and regularly as a casual employee for the previous 14 months) and put him on the non-allocated or reserve roster (in which he would fill absences, when and if they arise). This was done, so the Respondent claimed, in order that an interview process could be conducted and the Respondent could allay its concerns with the Applicant's conduct and intention.

[29] This decision was communicated on Thursday, 23 November 2006 by Mr Davis to Mr Parry, who had responsibility for rostering:

"I saw the statement, which is not a matter for today, I saw the statement as a very serious allegation overheard by a senior member of the Westside crew, had disturbed a number of employees. On further investigation, because you weren't there on Thursday I had determined that it had come from a couple of sources. I thought now that this was something that I needed to talk with you about. I asked for you to be taken off the allocated roster for the next week because at that time I was not too sure what the outcome of that conversation may have been. On Friday morning, Friday, when my expectation would have been that there would have been a conversation between you and Dennis Parry about having to come to see me then we would have communicated and we would have set up the meeting. You chose to walk off the job halfway through the shift and take away the opportunity to have that conversation, and then to ring me later and want to recreate history, it was not a palatable position for me to be in." [10]

[30] On Friday, 24 November 2006, the Applicant, one hour into his shift, sought confirmation from Mr Parry as to why he had not been placed on the allocated roster for the coming week and whether he had been sacked. Mr Parry informed him that he should speak to Mr Davis.

[31] On this bare exchange, the Applicant returned to the depot at around 8.00am in the morning.

[32] He alighted his bus, returned his keys and told Ms Harrop, the Operations Supervisor that he was going home. No explanation was provided.

[33] The Respondent was then required to roster other drivers to complete the Applicant's remaining service routes for the day. Three of those routes were unable to be serviced and any commuters were left without a bus service. The Respondent, consequently, was placed at risk of non-performance of its own contractual terms to TransLink.

[34] The Applicant claims that later that day, after having left work, he telephoned Mr Davis to inquire as to his employment status. Here there is a divergence in the claims as to what was discussed. The Applicant claims that after repeatedly asking Mr Davis, Mr Davis conceded that he (the Applicant) had been "sacked". [11]

[35] Mr Davis, for his part, contends that he made no such comment in relation to the transfer of the Applicant to the spare or unallocated roster. He did claim that he said that the Applicant "sacked himself" by walking off the job on Friday 24 November 2006:

"But when we had a phone conversation did you not tell me that I was sacked?

---No, I did not tell you you were sacked at any time or any point. I iterated to you that you had walked off the job, and if there were any words that I might have used I may well have said you sacked yourself." [12]

[36] The reference to the words "you sacked yourself" on the balance of probabilities is likely to have been uttered by Mr Davis, as this would give some measure of general credence to the Applicant's claim that Mr Davis had informed him that he was "sacked".

[37] However, Mr Davis' explanation of the import of those words is preferred over that of the Applicant. Mr Davis' evidence was lucid and deliberate. But there is a further particular reason for this: if Mr Davis did tell the Applicant he was "sacked" in the context in which the Applicant alleges, then it would mean that Mr Davis' direction only the previous day to Mr Parry (to place the Applicant on the spare or unallocated roster) had been to no purpose.

[38] The better interpretation of the conversation the Applicant and Mr Davis had, therefore, is that Mr Davis' comments were in respect of the events on Friday, 24 November 2006, in which Mr Davis informed the Applicant that he walked off the job and "sacked yourself".

[39] Having so determined the terms of the conversation of 24 November 2006, what then followed from this conversation and how do those actions by the Applicant relate to the claim that he abandoned his employment?

[40] In view of the conversation of 24 November 2006, the Applicant, on the following Tuesday (28 November 2006) acted on the basis that he had been informed that his employment had been terminated. That is, he returned his uniform shirts and his cash tin: actions the Applicant conceded were indicative of the cessation of the employment relationship. [13]

[41] The Respondent's claim that the Applicant abandoned his employment is based on his actions in leaving his shift without explanation and returning his cash tin and uniform shirts. But taken in their actual context, do these actions together or singularly imply abandonment of employment, such that there was no termination at the initiative of the employer?

[42] When Mr Davis informed the Applicant that he had "sacked" himself, he expressed his disposition as to the consequences of the Applicant's conduct in walking off his shift. The Applicant's subsequent conduct in returning his cash tin and uniform shirts was consequential to that disposition being expressed.

[43] In using the language he did, Mr Davis indicated that in his view, the conduct of "walking off the job" was conduct taken at the Applicant's initiative that had caused his (the Applicant's) employment to come to an end.

[44] But this is not an objective analysis of the Applicant's conduct as to whether it signalled an intention by the Applicant to abandon his employment. Rather, it is, as stated above, an expression of the employer's disposition about an act of misconduct on the Applicant's part that took place on 24 November 2006.

[45] Whilst not a great benefit can come from too forensic an examination of the words used in the exchange between the Applicant and Mr Davis on Friday, 24 November 2006, it is enough to say that Mr Davis' choice of words provided reasonable scope for the Applicant to infer that the Respondent had formed the view that his conduct, of whatever kind prior to or at 24 November 2006, was such that it no longer sought to employ him.

[46] That is, given the terms of the exchange, the Applicant inferred reasonably in the circumstances that in his employer's view he was no longer employed. This resulted in him returning his uniform shirt and cash tin on the Tuesday.

[47] Further, the very fact that the Applicant contacted his employer to verify his employment status (because of his employer's actions in moving him off the allocated work roster) supports the finding that the Applicant did not intend to abandon his position and no-longer seek to perform his contract of service.

[48] Given this, it is concluded that the Applicant's conduct in returning his cash tin and uniform shirts to his employer on Tuesday, 28 November 2006, was not indicative of his intention to abandon his employment: he was of the view that his employment had ceased because his employer held a disposition that he was no-longer employed, and but for the holding of that view, he would have sought to remain in the Respondent's employment.

[49] This disposes of the question as to whether the Applicant abandoned his employment.

[50] It raises, however, a collateral issue: did the Respondent consequentially cause the Applicant's employment to come to an end, such that the Applicant's employment was terminated at the initiative of the employer? That is, the Applicant only took the action of returning his cash tin and shirt because he acted on the presumption that he was sacked at the Respondent's initiative. This was a presumption on the Applicant's part, so can it be said that the Respondent terminated the Applicant's employment at its own initiative? Or by returning his cash tin and uniform did the Applicant resign his employment? Or further, is it arguable that no decision was taken to terminate the Applicant's employment at the Respondent's initiative and that for all practical purposes, irrespective of his actions in returning his cash tin and uniform, the Applicant remains an employee of the Respondent?

[52] It is clear that the Respondent was of the view that the Applicant's conduct (in walking off shift on Friday 24 November 2006) was conduct in repudiation of the contract of employment. As previously discussed, the Respondent expressed the view to the Applicant that in walking of the job he had "sacked himself".

[53] It would appear in this matter that the Respondent has itself confused the Applicant's misconduct in walking off the job with the notion of abandonment of employment. It is, in actuality, the consequence of the former (the misconduct) that was the focus of the Respondent's comments on the status of the Applicant's employment contract, not the latter (abandonment).

[54] In essence, the Respondent had formed a view that it considered the misconduct (which was expressed in walking off shift) as misconduct that had brought the employment contract to an end, and that no further work would be offered to the Applicant for that reason. This is irrespective of its own view that the Applicant held causal responsibility for this outcome.

[55] The formation of such a view amounts to a termination at the initiative of the employer because it was a view formed about the consequences of the Applicant's misconduct and duly communicated to him (the Applicant) in the telephone discussion of 24 November 2006. Of course, whether the misconduct that occurred warranted the termination of the Applicant's employment is one to be tested in the context of s.652(3) of the Act.

[56] This conclusion, it should be added, is reached whilst having regard to claims elsewhere in the Respondent's evidence that it had kept the Applicant's name on the spare or unallocated work roster for several weeks after he had returned his cash tin and uniform and uniform shirt. In the Commission's view this claim is not material. This is because the Respondent had itself accepted that the contract of employment had come to an end on Tuesday, 28 November 2006, and the continued presence of the Applicant's name on a roster beyond date that would appear to have no bearing on the matter. [14]

[57] It should be noted that no submission was made in relation to the operation of the definition of termination of employment in the context of s.642(3) of the Act as it might apply to a casual employee who has been employed for over 12 months on a regular and systematic basis. [15] But on the face of it, there might be some likelihood, conceivably, that that the action taken to remove the Applicant, without consultation, from the allocated work roster to the non-allocated work roster, and which would have reduced his remuneration very substantially indeed, would in any event amount to a demotion constituting a termination of the Applicant's employment at the employer's initiative.

[58] The Motion to Dismiss on the ground that the Applicant had not been terminated at the initiative of the employer as moved is not upheld.

[59] Because of various uncertainties arising from the terms of the original application, this matter will be now subject to a further Directions conference before any further action is contemplated (which may involve the hearing of a further motion to dismiss).

Printed by authority of the Commonwealth Government Printer

[7] Resignation, by contrast is a voluntary act by the employee to bring the contract of service to an end by provision of notice, of some form. Such circumstances are subject to statutory regulation at s.642(4) of the Act.

[8] [1998] FCA 1660 at PNS 15-16

[11] Statement of Michael John Allen

[15] Compared with the exclusionary function of s.638(4) of the Act.