What happened

Mr Saltmere applied to the Fair Work Commission under s 365 of the Fair Work Act 2009, alleging that Mount Isa Mines Limited (MIM) dismissed him on 4 July 2024 in contravention of his workplace rights [1]. MIM objected to the Commission dealing with the application, arguing that Mr Saltmere had not been dismissed [2].

The dispute arose from Mr Saltmere’s Mount Isa-based job as a PBSM Operator MPATT. He accepted the role on 11 July 2023 and worked in Mount Isa from 2 August 2023 until his last attended shift on 2 April 2024 [9]-[10]. The accommodation he initially used was connected with his partner’s employment. After his partner relocated to Cairns, Mr Saltmere also moved there. He told the Commission that the arrangement in Mount Isa was no longer available [11], [45].

Mr Saltmere obtained leave from 15 to 26 April 2024 to arrange accommodation in Mount Isa [12]. He was due back at work on 1 May but did not return [13]. At a meeting on 27 May, he told MIM that he did not intend to return because he had not secured accommodation in Mount Isa [14]. MIM’s evidence was that the role was residentially based in Mount Isa and did not come with company-provided accommodation [33]-[35]. Mr Saltmere, by contrast, said he understood that accommodation might be available and raised possible flexible work arrangements and leave without pay [21]-[25].

On 20 June, MIM wrote to Mr Saltmere about his continued absence, then recorded as 28 missed shifts. It gave him until 30 June to respond and said it would otherwise regard the employment relationship as ending [15]. He did not respond or attend his rostered shifts. On 9 July, MIM wrote that it considered he had abandoned his employment and regarded the relationship as having ended on 4 July [16].

The Commission’s decision was not about whether MIM had contravened workplace protections. It first had to decide whether a dismissal had occurred at all. It held that it had not, upheld MIM’s jurisdictional objection, and dismissed the application [3]-[4], [51]-[52].

Why the court decided this way

The Commission started with the statutory gateway. Section 365 allows an application where a person “has been dismissed” and alleges dismissal in contravention of the relevant part of the Act [17]. The meaning of dismissed comes from s 386(1): employment must have been terminated on the employer’s initiative, or the employee must have resigned because the employer’s conduct forced them to do so [18]. The Commission said it was clear that Mr Saltmere had not resigned, so the relevant question was whether there had been termination on MIM’s initiative [39].

The decision distinguishes the employment relationship from the employment contract. The Commission noted that “termination” in this context refers to termination of the employment relationship, not simply the contract [40]. It then considered abandonment of employment and repudiation. Its approach was objective: whether the employee’s conduct, viewed in all the circumstances, would convey to a reasonable person in the employer’s situation that the employee renounced the employment contract or a fundamental obligation under it [41]-[44].

The factual assessment was important. Mr Saltmere said he had enquired about accommodation at caravan parks and hotels but found it too expensive. Asked what amount he regarded as expensive, he referred to $700 but was unsure whether that was a weekly figure. He had not applied for rental properties. The Commission found that the evidence showed, at most, that he had not found accommodation within his preferred price range, rather than that he had made substantial efforts to secure a place in Mount Isa [46]. It also asked whether he had communicated a proposal for flexible working arrangements. He had not [47].

The Commission accepted MIM’s position that it was not responsible for securing accommodation for him [49]. It considered his extended non-attendance, lack of meaningful efforts to return, and failure to respond to the 20 June letter together. Those facts led it to find that his conduct would convey renunciation to a reasonable person in MIM’s position [48]-[49].

The resulting analysis was that Mr Saltmere’s conduct amounted to abandonment and repudiation, and MIM accepted that repudiation. Although MIM’s communications described the employment as ending, the Commission found that the employment relationship had ended through Mr Saltmere’s renunciation, not through termination on MIM’s initiative [49]-[50]. The dismissal jurisdictional fact was therefore absent, so the general protections application could not proceed [51]-[52].

Before and after state of the law

This decision applied the existing statutory framework rather than announcing a new statutory test. The relevant provisions were s 365, which requires a dismissal for this kind of application, and s 386(1), which defines when a person has been dismissed [17]-[18]. The decision’s practical contribution is its application of abandonment and repudiation principles to a particular set of facts, rather than a change to those provisions.

The Commission referred to the Full Bench’s discussion of abandonment in Abandonment of Employment (4 yearly review of modern awards) [2018] FWCFB 139 [41]. That discussion describes abandonment as an employee ceasing to attend work without proper excuse or explanation in a way that indicates unwillingness or inability substantially to perform the employment obligations. The Commission also referred to Susann Sharpe v MCG Group Pty Ltd [2010] FWA 2357 for the different approaches taken in abandonment cases, including cases where the employee’s conduct itself brings the relationship to an end and cases where the employer accepts repudiation [42].

For the contract-law concept of repudiation, the Commission referred to Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 [43]. In applying these authorities, the Commission emphasised the objective character of the inquiry and said that a subjective intention to repudiate need not be shown [44]. It also cited Elizabeth Blyth v Francis William Penhalluriack [2022] FWC 972, Whittaker v Unisys Australia Pty Ltd [2010] VSC 9 and Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531 in connection with that approach [44].

The decision also records that Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 required the Commission to determine a dispute about whether there had been a dismissal under s 365 before exercising powers under s 368 [3]. That procedural point explains why the Commission decided the dismissal question first.

The outcome did not resolve whether MIM had contravened workplace rights, nor did it decide the merits of the alleged general protections claim. It determined only the threshold issue of whether Mr Saltmere had been dismissed. The source decision does not describe any subsequent amendment to the law or later judicial treatment of this particular decision.

Key passages with plain-English translation

At [39], the Commission identified the two statutory routes to dismissal: employer-initiated termination, or a resignation forced by employer conduct. It found that Mr Saltmere had not resigned, leaving the first route to be assessed. In plain English, the Commission treated the case as a question of who, in substance, brought the employment relationship to an end.

At [40], it stated that termination concerns the employment relationship, rather than merely the employment contract. This matters because the parties’ contract may be brought to an end through repudiation, while the statutory question remains whether the employment relationship was terminated on the employer’s initiative.

At [44], the Commission said abandonment is assessed “objectively, in light of all the circumstances” and that subjective intention to repudiate is unnecessary. In plain English, an employee’s unspoken intention is not decisive. The focus is on what the employee’s conduct would communicate to a reasonable employer in the circumstances.

At [46], the Commission distinguished inability to find accommodation at a preferred price from evidence of substantial attempts to secure accommodation. This was an assessment of the evidence in this case. The Commission noted that Mr Saltmere had made enquiries but had not applied for rental properties, and that his evidence did not establish that no accommodation could be found.

At [49], it concluded that Mr Saltmere’s conduct would convey renunciation to a reasonable person in MIM’s position, and that MIM accepted it. In plain English, the Commission saw the combination of non-attendance, limited efforts to return, and silence in response to MIM’s letter as communicating that he would not substantially perform the job’s requirements.

At [50]-[52], the Commission linked that finding to the statutory result: because the relationship ended through abandonment and not on MIM’s initiative, Mr Saltmere had not been dismissed and the application was dismissed.

What fact patterns trigger this precedent

The decision is relevant where an employee stops attending work for an extended period, the job has a stated or understood work location, and the employer argues that the employee’s conduct amounted to abandonment rather than an employer-initiated dismissal. Its reasoning makes the employee’s explanation, communication with the employer, and efforts to resume work relevant parts of the factual assessment [44], [48]-[49].

The particular combination mattered here. Mr Saltmere moved away from the work location, did not return after leave, did not secure accommodation within his preferred price range, did not make rental applications, did not provide a proposed flexible work arrangement, and did not respond to a letter asking him to clarify whether he intended to return [45]-[49]. The Commission assessed those facts together, not as isolated rules that automatically determine every case of absence.

The decision also involved disputed understandings about accommodation and flexibility. Mr Saltmere said he believed accommodation could be available and that discussions had taken place about flexible work [21]-[25]. MIM’s evidence was that the role was Mount Isa-based, accommodation was not provided for the role, and a flexible work request had to be made in writing [33]-[35]. The Commission’s conclusion rested on the evidence it accepted and on the absence of a specific proposal or supporting material from Mr Saltmere [47]-[49].

The decision does not establish that every prolonged absence, failure to answer a letter, relocation, or inability to secure housing amounts to abandonment. The Commission expressly framed the issue as an objective evaluation of all the circumstances [44]. The relevance of any one factor depends on the evidentiary context and on what the conduct would convey to a reasonable employer.

How later courts have treated it

The supplied judgment is dated 21 November 2024 and was last updated on 25 November 2024. The materials provided do not identify any later court or Commission decision that applied, followed, distinguished, or otherwise considered Saltmere. It is therefore not possible, on this source alone, to describe its subsequent treatment.

The authorities discussed in the decision are earlier authorities, not later treatment of Saltmere. The Commission relied on the Full Bench abandonment discussion, Sharpe, Koompahtoo, and other authorities to explain the tests it applied [41]-[44]. It also referred to Coles Supply Chain v Milford for the need to resolve the dismissal issue before proceeding under s 368 [3]. Those relationships show the legal framework the Commission considered, but they do not establish how later decision-makers have interpreted this 2024 ruling.

Still-open questions

The decision resolves the jurisdictional objection on the evidence before Commissioner Durham, but leaves several matters outside its scope. First, it does not decide whether MIM contravened any workplace right. That merits question was not reached because the Commission found no dismissal under s 386 [51]-[52].

Second, it does not determine in general what steps an employer must take before treating an employee as having abandoned employment. The decision records MIM’s letters and its response deadline, but its stated test concerns the employee’s conduct and the objective impression that conduct conveyed [15]-[16], [44], [49]. The judgment does not set out a comprehensive procedure for all abandonment cases.

Third, it does not decide whether accommodation or flexible arrangements were promised or legally required in this case as a separate issue. It records the competing positions on those matters and then focuses on Mr Saltmere’s efforts, communications, and absence [21]-[25], [33]-[38], [46]-[49]. It also does not determine what outcome would follow if an employee made more extensive accommodation enquiries, submitted a specific flexibility proposal, or responded to an employer’s request.

Finally, the decision does not provide later judicial consideration or a broader assessment of how its reasoning applies across different industries, roles, or employment arrangements. Those questions would require additional sources and the facts of any later case. This is general legal information, not legal advice. Zoe can make mistakes, and before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.

Judgment (83 paragraphs)

[1]

Mr Clargie Saltmere v Mount Isa Mines Limited [2024] FWC 3221 (21 November 2024)

[2]

Fair Work Act 2009

[3]

s.365 - Application to deal with contraventions involving dismissal

[4]

Application to deal with contraventions involving dismissal - jurisdictional objection - whether employee dismissed - repudiation by employee - abandonment of employment - repudiation of employment contract - application dismissed.

[5]

[1] On 18 July 2024, Mr Clargie Saltmere made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act). Mr Saltmere alleges that he was dismissed by Mount Isa Mines Limited (MIM) on 4 July 2024 in contravention of his workplace rights.

[6]

[2] MIM opposed the application, by way of raising a jurisdictional objection that the Applicant was not dismissed.

[7]

[3] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[1] It is therefore necessary to determine the jurisdictional issue raised by the Respondent before Mr Saltmere's application can proceed.

[8]

[4] For the reasons outlined below, I find that Mr Saltmere was not terminated on the employer's initiative, as he had abandoned his employment consequently causing a repudiation of the employment contract, and as such the application is dismissed.

[9]

[5] I issued directions on 2 September 2024, for the parties to file their material.

[10]

[6] The question of whether Mr Saltmere was dismissed was dealt with at a hearing on 14 November 2024. Mr Saltmere represented himself and Mr David Kerr, General Manager Legal, represented MIM.

[11]

[7] Both parties filed written submissions and witness statements. However, neither party called any witnesses, apart from Mr Saltmere who provided oral evidence during the hearing.
[8] MIM's submissions included statements from Ms Sarah Arsenic (Advisor - Human Resources), Mr Scott Ezzy (Superintendent - Blast Furnace) and Mr Mark Bull (Supervisor - PB SM Blast Furnace), however MIM chose not to call them to provide sworn evidence. Mr Saltmere also advised chambers that he did not wish to cross examine them. It is also noted that Mr Saltmere, having had access to the statements as filed, did not file any submissions in reply or raise any further issues in his oral evidence.

[12]

[9] Mr Saltmere accepted a position with MIM in the role of PBSM Operator MPATT on 11 July 2023. Mr Saltmere's role was based in the Metallurgical Plants Area in Mount Isa.

[13]

[10] Mr Saltmere worked as an Operator in Mount Isa from 2 August 2023 to 2 April 2024 (his last attended shift). During this time, Mr Saltmere was responsible for his own accommodation in Mount Isa. MIM submit that at no stage during Mr Saltmere's employment did they provide, or suggest it could provide, accommodation with the role.

[14]

[11] During the hearing, Mr Saltmere confirmed that when he accepted the role in Mount Isa, he was living in his partner's accommodation. As I understand his evidence, his partner was relocated to Cairns in March 2024 and Mr Saltmere relocated to Cairns at this time as well. It is noted that MIM do not operate a Metallurgical Plants Area in Cairns.

[15]

[12] After moving to Cairns, Mr Saltmere requested a period of leave from 15 April 2024 to 26 April 2024 (inclusive) to provide him with time to arrange accommodation in Mount Isa.

[16]

[13] Mr Saltmere was due to return to work on 1 May 2024 however Mr Saltmere did not return.

[17]

[14] On 27 May 2024 a phone meeting was held between Mr Saltmere, Mr Ezzy, Ms Arsenic, and Mr Bull. During the meeting Mr Saltmere informed MIM that he was not intending to return to work as he had not secured accommodation in Mount Isa.

[18]

[15] On 20 June 2024 MIM sent Mr Saltmere a letter regarding his continued absence (which at this time consisted of 28 missed shifts). The letter explained that MIM considered his actions amounted to a rescission of his employment contract. MIM gave Mr Saltmere until 30 June 2024 (10 days) to advise if this was not the case and further advised that, should he fail to respond, this would be taken as confirmation of the recission of his contract and that they would regard the employment relationship as ending effective 1 July 2024.[2]

[19]

[16] Mr Saltmere failed to respond to the letter and did not attend the rostered shifts. Consequently, on 9 July 2024, having not received a response, MIM wrote to Mr Saltmere, advising that due to his lack of response, they had determined that he had abandoned his employment, and that they considered that the employment relationship came to an end on 4 July 2024.[3]

[20]

[17] Section 365 of the Act provides:

[21]

"365 Application for the FWC to deal with a dismissal dispute

[22]

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

[23]

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

[24]

[18] Section 365 requires a dismissal to have occurred as a jurisdictional fact. "Dismissal" for these purposes (and other purposes of the Act) is defined in s.386(1), which provides:

[25]

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

[26]

(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."

[27]

[19] Mr Saltmere's submissions and statement were filed as one document.

[28]

[20] The submissions focus in large part on the question of whether or not he was promised by MIM arranged accommodation in Mount Isa, and other attempts by him to secure arrangements that would have allowed him to continue living in Cairns, whilst working in Mount Isa.

[29]

[21] Mr Saltmere argues that he had formed the view that MIM provided accommodation was available to employees in Mount Isa. He states that Ms Roslyn Saddington (HR employee) was his contact person for these matters and had advised that there was accommodation in Mount Isa and that the cost was $50 per night.

[30]

[22] Mr Saltmere states that Mr Ezzy said to him "if we say yes to you, we have to say yes to everyone" regarding discussions around accommodation.[4] Mr Saltmere took this to imply that accommodation is available but is a personal discretion.

[31]

[23] Regarding flexible work arrangements, Mr Saltmere states that during a phone conversation with Ms Arsenic, they discussed flexible work arrangements and he requested that she email him further information. Mr Saltmere acknowledged that he was advised that he could forward any request for such arrangements via email however wondered why he needed to do this as he had asked HR for this information. He further states that Mr Bull, had indicated that flexible work arrangements do not get granted at MIM, as such he felt encouraged to not bother with applying for a flexible work arrangement.[5]

[32]

[24] Mr Saltmere states he also queried leave without pay but was not given formal processes regarding how to apply.

[33]

[25] In response to MIM regarding why he ceased to attend his place of employment without a proper excuse or explanation, Mr Saltmere states he had been very clear with MIM that he was not able to attend work due to having no residence and was seeking an alternative roster/flexible work arrangement. Mr Saltmere did not provide any copies of correspondence or submit particulars giving effect to this argument.

[34]

[26] Mr Saltmere states he initiated the meeting between Mr Ezzy, Ms Arsenic, Mr Bull and himself in order to "get on the same page", because he was having three very different conversations with each of them.[6] Mr Saltmere states that at no point did MIM seek a meeting or anything to work together for an outcome.

[35]

[27] MIM submit that Mr Saltmere's failure to respond to their letter sent on 20 June 2024 and failure to provide any justification regarding his non-attendance for his rostered shifts over the course of nearly two months amounted to a positive step from Mr Saltmere to bring his employment to an end.[7]

[36]

[28] MIM state that they had provided Mr Saltmere with numerous opportunities to resolve his concerns (such as a leave period to arrange accommodation as well as a period of time to propose a flexible work arrangement).

[37]

[29] On the point of whether MIM dismissed Mr Saltmere within the meaning of s.386, they submit it is well established that repudiatory conduct, of itself, does not bring rights and obligations under a contract to an end. Only where the party who is the subject of the repudiatory breach accepts that repudiation will the contract be brought to an end. In this case Mr Saltmere ceased to attend his place of employment without a proper excuse or explanation, thereby demonstrating an unwillingness to substantially perform his obligations under his employment contract.

[38]

[30] MIM submit the actions of Mr Saltmere show a clear intention that he no longer wished to be bound by the contract of employment, by way of Mr Saltmer's actions of:

[39]

b. failing to arrange accommodation in Mount Isa following his move to Cairns;

[40]

c. failing to attend for rostered shifts for almost 2 months; and

[41]

d. failing to respond to the letter of 20 June 2024.

[42]

[31] MIM referred to Muhammed Ali Qureshi v Spotless Services Australia Limited [2023] FWC 2411, where it was held that acceptance of repudiation does not constitute "dismissal" at the initiative of the employer for the purposes of the FWA.

[43]

[32] MIM submit that although it was their action in accepting the repudiation which terminated the employment contract with the Applicant, this was not a dismissal within the meaning of the s.386 because the employment relationship had by then already ended due to Mr Saltmere's renunciation of his obligations to attend work when rostered. As such, there was no termination on the initiative of MIM.

[44]

[33] In response to Mr Saltmere's submissions/statement, MIM submit that in very exceptional circumstances, MIM might provide an employee with temporary accommodation (for example, where an employee becomes homeless unexpectedly). However, even in these circumstances, the employee would still need to pay for the accommodation which is roughly $55 per night. MIM state that their HR have always maintained a consistent message to Mr Saltmere that accommodation is not available with his Mount Isa based role or in his circumstances. Further that Mr Saltmere's discussions with Mr Ezzy are incorrect, as he did not suggest that providing accommodation was discretionary. Mr Ezzy advised Mr Saltmere it was not possible.[8] It is further submitted that if the standard position was changed and free accommodation was provided to Mr Saltmere then every other employee in Mr Saltmere's position would expect free accommodation.[9] Ms Arsenic also states on 12 April 2024, Mr Saltmere contacted her regarding the possibility of securing accommodation in Mount Isa. Ms Arsenic advised Mr Saltmere that his position as an Operator is residentially based in Mount Isa, there is no Company supplied accommodation for his position and that it is his responsibility to secure accommodation.[10]

[45]

[34] In response to Mr Saltmere's discussions with Ms Arsenic regarding flexible working arrangements, MIM submit that Ms Arsenic requested that he put all his questions into an email so that she could respond to them appropriately. Ms Arsenic states that on 2 May 2024 Mr Saltmere called her to advise that he had not secured accommodation in Mount Isa and that he failed to attend his rostered shifts as a result. Mr Saltmere asked about flexible working arrangements, to which Ms Arsenic advised that any request for flexible working arrangements would need to be submitted in writing, via email, for the application to be reviewed. Further, that their request for flexible working arrangements would need to include the change in work arrangements they were seeking, as well as the reason for the request.[11]

[46]

[35] In response to Mr Saltmere's discussions with Mr Bull, Mr Bull advised that flexible working arrangements were not possible given that it was a Mount Isa based role.[12] He further advised that where possible, depending on the role, MIM, can accommodate flexible working arrangements but it will always depend on the inherent requirements of each particular role.[13]

[47]

[36] In response to Mr Saltmere's submissions regarding his approved annual leave, it would appear that Mr Saltmere has confused his approved leave from 7 April 2024 to 10 April 2024 (which was requested in November 2023). Following this annual leave period, Mr Saltmere advised MIM that he had not secured accommodation in Mount Isa. MIM then granted him annual leave from 15 April 2024 to 24 April 2024, then special leave until 26 April 2024 as Mr Saltmere exhausted his annual leave entitlements.[14]

[48]

[37] In response to Mr Saltmere's submission that he had been clear with MIM that he was unable to attend due to not having a residence and was seeking flexible work arrangements, MIM submit it is not their responsibility to ensure that its employees attend work when they are rostered on to do so.[15] In this case, Mr Saltmere moved to Cairns on his own accord and then expected that MIM do everything it could to ensure he could still work from Cairns. Mr Saltmere failed to take the appropriate measures to ensure he could continue to work in his role in Mount Isa. Mr Saltmere also failed to respond to MIM's letters and attempts to confirm he would return to work, resulting in MIM accepting his repudiation of his employment contract.

[49]

[38] In response to Mr Saltmere's submission regarding the meeting, MIM submit that Mr Ezzy, Ms Arsenic, and Mr Bull attended a meeting with Mr Saltmere to reinforce the consistent messaging that had been provided to him previously, that accommodation could not be provided to someone in Mr Saltmere's role and that flexible working arrangements were not possible given the inherent requirements of his role, being Mount Isa based.

[50]

[39] Determining whether Mr Saltmere was dismissed within the meaning of s.386(1) requires consideration of two elements. The first concerns termination on the employer's initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct. It was not pressed and clear from the facts that Mr Saltmere did not resign from his roles. As such the first element would be the relevant consideration.

[51]

[40] In determining whether there has been a termination at the Respondent's initiative, the reference to termination is in reference to that of the employment relationship, not the contract.[16]

[52]

[41] In regard to abandonment of employment, the concept was examined by the Full Bench in Abandonment of Employment (4 yearly review of modern awards) noting the following:[17]

[53]

"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."

[54]

[42] Further, in Susann Sharpe v MCG Group Pty Ltd, then Commissioner Asbury summarised the concept and relevant findings as follows:[18]

[55]

"The concept of abandonment of employment is not new to employment law. It is a term that is often loosely used, or used without consideration of the effect of the abandonment upon the employment relationship or the contract of employment. Generally, abandonment arises in circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent. There are cases where it has been held that the conduct of the employee in abandoning his or her employment has brought the employment to an end so that there has been no termination at the initiative of the employer. In contrast, there are cases where it has been held that abandonment on the part of an employee constitutes repudiation of the employment contract, and that the election of the employer to accept the repudiation is the action which brought about the termination of employment. There are also cases where the focus has been on whether or not conduct on the part of an employee constituted abandonment of employment, and because of the findings in relation to this point, there was no requirement to consider whether the abandonment per se brought about the termination of the employment."

[56]

[43] The High Court of Australia also considered repudiation in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd in which Gleeson CJ, Gummow, Heydon and Crennan JJ said as follows (references omitted):[19]

[57]

"In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. 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. (In this case, we are not concerned with the issues that arise where the alleged repudiation takes the form of asserting an erroneous interpretation of the contract. Nor are we concerned with questions of inability as distinct from unwillingness.) Secondly, it may refer to any breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word "repudiation" in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words."

[58]

[44] Whether a person has abandoned their employment is to be considered objectively, in light of all the circumstances.[20] It is unnecessary to show a subjective intention to repudiate.[21]

[59]

[45] In his oral evidence, prior to moving to Cairns, Mr Saltmere explained that upon accepting and commencing his employment, his accommodation in Mount Isa had been provided through his partner's employment. However, his partner had been transferred to Cairns in November 2023 and as such, her Mount Isa accommodation was no longer available. It was at this point that Mr Saltmere made the decision to relocate to Cairns. Whilst not specifically stated, I have presumed based on his conduct, that it was Mr Saltmere's intention at this time to find new accommodation in Mount Isa so that he could return to work.

[60]

[46] During the hearing, I asked Mr Saltmere what he did to look for accommodation in Mount Isa in order to return to work, he said that he made enquiries at some accommodations such as caravan parks and hotels but was unable to secure accommodation as he found it to be too expensive. When I asked Mr Saltmere what he considered to be expensive, he said that $700 was too expensive. I sought to clarify whether this was $700 a week, but Mr Saltmere was unsure. I asked Mr Saltmere if he made any attempts to apply for rental properties, however Mr Saltmere said that he did not. Mr Saltmere did not provide any evidence to support his assertion that he could not find accommodation in Mount Isa, at most, his evidence indicated that he was not able to find accommodation within his preferred price range.

[61]

[47] With respect to Mr Saltmere's assertion that MIM were aware that he was seeking flexible work arrangements, I asked Mr Saltmere whether he communicated any proposals to MIM to arrange flexible work arrangements, he did not.

[62]

[48] From the material provided, and noting the lack of Mr Saltmere addressing the question of whether he was dismissed, it appears quite clear to me that Mr Saltmere has abandoned his employment, noting that he had not attended 28 shifts from 1 May 2024 to 20 June 2024 without proper excuse or explanation.

[63]

[49] I accept MIM's contention that they were not responsible for securing accommodation for Mr Saltmere. Whilst I acknowledge Mr Saltmere found the accommodation in Mount Isa to be expensive, his failure to make any real effort to apply for rentals or make real attempts to return to Mount Isa infers an unwillingness or inability to substantially perform his obligations under the employment contract. I further note the apparent lack of communication from Mr Saltmere, in particular the lack of a response to MIM's 20 June 2024 letter. As such I find Mr Saltmere's conduct would convey to a reasonable person in the situation of MIM, a renunciation of the employment contract which MIM subsequently accepted, ending the employment relationship.

[64]

[50] As such, Mr Saltmere's conduct, in abandoning his employment consequently caused a repudiation of the employment contract, which has brought the employment to an end so that there has been no termination at the initiative of MIM.

[65]

[51] Having considered the above, Mr Saltmere has not been dismissed within the meaning of the Act, the jurisdictional objection is upheld.

[66]

[52] As a result, the application is therefore dismissed.

[67]

[1] [2020] FCAFC 152.

[68]

[2] DCB at pg. 6 - Non-attendance Letter.

[69]

[3] DCB at pg. 7 - Abandonment of Employment Letter.

[70]

[4] DCB at pg. 7 - Applicant Submission/Statement at 3.

[71]

[7] DCB at pg. 23 to 24 - Respondent Submissions at 9.

[72]

[8] DCB at pg. 28 - Witness Statement of Scott Ezzy at 6.

[73]

[9] DCB at pg. 33 - Respondent Reply Submissions at 3.

[74]

[10] DCB at pg. 26 - Witness Statement of Sarah Arsenic at 4.

[75]

[12] DCB at pg. 35 to 36 - Witness Statement of Mark Bull at 7.

[76]

[14] DCB at pg. 33 - Respondent Reply Submissions at 6.

[77]

[16] Leanne Taprell v Mark Anthony John Boyle & Jenny Bouris [2023] FWC 1352, [44].

[78]

[17] [2018] FWCFB 139.

[79]

[18] [2010] FWA 2357, [29].

[80]

[19] [2007] HCA 61; (2007) 233 CLR 115, [44].

[81]

[20] Elizabeth Blyth v Francis William Penhalluriack [2022] FWC 972, [66].

[82]

[21] Whittaker v Unisys Australia Pty Ltd [2010] VSC 9; (2010) 192 IR 311 at [32] - [41] and Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531; (2013) 234 IR 1 at [126].

[83]

Printed by authority of the Commonwealth Government Printer

Mr Clargie Saltmere v Mount Isa Mines Limited [2024] FWC 3221

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