Motion to Dismiss application (HUU) as frivolous, vexatious or lacking in substance - where Respondent alleged Applicant had abandoned his employment -Applicant found to have abandoned his employment - Commission does not have jurisdiction to hear s.643 application - application dismissed.

[1] Mr Sean Erbacher ('the Applicant') lodged an application for relief in respect to the termination of his employment by Golden Cockerel Pty Ltd ('the Respondent') pursuant to s.643 of the Workplace Relations Act 1996 ('the Act').

[2] The application was made on the grounds that the termination was harsh, unjust and/or unreasonable. The Applicant was employed as a process worker from 7 April 2005 until the time of his termination of employment on 7 February 2007. He was employed as a process worker under the Golden Cockerel Union Collective Workplace Agreement 2006.

[3] The Respondent lodged a Notice of Motion to Dismiss the application for want of jurisdiction ('Motion to Dismiss') on the grounds that it was frivolous, vexatious or lacking in substance pursuant to s.646 of the Act. The Applicant was dismissed for abandoning his employment from 29 January 2007 to 5 February 2007. The Applicant submitted that he did not abandon his employment, as he was under the assumption that he was on approved annual leave for this period. The Respondent submitted that the Applicant had applied for annual leave and that such leave was refused. The Respondent objected to proceeding to conciliation before the jurisdictional matter was dealt with by the Commission [1]. The Commission issued Directions to the Applicant and the Respondent requesting they provide any materials they wished to rely upon in relation to the application to dismiss the matter to the Commission, and to each other. Furthermore, the parties were requested to respond as to whether they sought a hearing in relation to this matter as follows:

"The Respondent has requested the Commission determine the matter "on the papers" pursuant to S.646 (3) of the Act as follows:

(3) The Commission is not required to hold a hearing in relation to the making of an order under subsection (1) or (2).

Pursuant to section 648 of the Act, the Commission is not required to hold a hearing in relation to this matter and may determine the matter on the submissions provided. Accordingly the parties should include all relevant materials in their submissions and, where necessary, evidence. If a party seeks a separate hearing in the matter they should indicate the reasons for this, or alternatively, whether there is any objection to this course."

[4] Neither party sought a hearing in this matter. Accordingly, it has been determined on the material provided.

[5] Whilst not all of the evidence, submissions and materials have been referred to in this decision, all of such have been considered in the determination of this matter.

[6] Sections 646 and 648 of the Act state:

"646 Applications that are frivolous, vexatious or lacking in substance

(a) an application is made, or purported to have been made, under subsection 643(1):

(i) on the ground referred to in paragraph 643(1)(a); or

(b) the respondent moves for dismissal of the application on the ground that it is frivolous, vexatious or lacking in substance; and

(c) the Commission is satisfied that the application is frivolous, vexatious or lacking in substance, in relation to the ground referred to in paragraph 643(1)(a);

(d) if subparagraph (a)(i) applies - make an order dismissing the application; or

(e) if subparagraph (a)(ii) applies - make an order dismissing the application to the extent that it is made on the ground referred to in paragraph 643(1)(a).

"(1) The Commission must, in deciding whether or not to hold a hearing for the purposes of deciding:

(a) whether to make an order under subsection 645(5) or (6) or 646(1) or (2); or

(b) whether to grant an extension of time application within the meaning of section 647;

take into account the cost that would be caused to the business of the employer concerned by requiring the employer to attend a hearing.

(2) If the Commission decides not to hold a hearing, the Commission must, before making a decision:

(a) invite the employee and the employer concerned to provide further information that relates to whether the order should be made or the extension of time granted; and

(3) If, as a result of information provided as mentioned in subsection (2), the Commission considers that it would be desirable to hold a hearing, the Commission may do so.

(a) be given by notice in writing to the employee and the employer concerned; and

(b) specify the time by which the information referred to in the invitation is to be provided."

[7] In assessing the termination of the Applicant's employment, the Respondent provided that the Applicant was employed under the Golden Cockerel Union Collective Agreement 2006 and that in addition the Respondent relies on the company policies which are included in the company handbook. Relevantly, these policies provide for "attendance and absenteeism procedures".

[8] The Respondent submitted that on 2 August 2005, the Applicant signed a statement headed 'Receipt of Employee Handbook', which confirmed that the Applicant recognised that compliance with these rules is a condition of employment. The Respondent stated that the attendance and absenteeism procedures and policy emphasise the importance of regular attendance in a production environment and, in particular, state that "absence without good reason will indicate that you do not value your position with the Golden Cockerel group of companies and will be cause for disciplinary action or termination."

[9] The Respondent submitted that a final written warning was provided to the Applicant on 17 November 2006. A disciplinary interview was conducted with the Applicant in relation to an incident of smoking in the staff car park and insubordination, rudeness and insulting behaviour by the Applicant towards the Occupational Health and Safety Officer when he was requested to cease smoking in the car park.

[10] As a result of the disciplinary interview, a final written warning was issued which clearly stated that the Applicant's conduct will be reviewed on an ongoing basis "to assess whether changes have occurred. Failure to change your practices may result in further disciplinary action, including termination".

[11] The Applicant signed the record of interview. This final written warning dated 17 November 2006 was attached to a warning letter which stated "the company expects that there will be no further instances of unacceptable behaviour by you. Further instances of misconduct may lead to termination of your employment".

[12] The Respondent outlined the circumstances leading to the termination of the Applicant's employment, and emphasised that they had clear procedures in place for employees to follow in order to have periods of annual leave approved, as follows:

"Employees are required to complete and submit a form requesting annual leave at least 2 weeks' prior to the planned leave. Since the employees in the Employer's workplace work according to a roster, when the Employer receives a form requesting annual leave, the Employer must assess its rostering requirements for that period and also the number of other employees who have already requested and been authorised to take annual leave during the relevant period. The form titled 'Application For Annual and Other Leave' states: 'NOTE: This form must be authorised and received by the Pay Office two (2) weeks prior to planned leave being taken'.

The Applicant was aware of the procedure required to be followed to seek approval for a period of annual leave. Notwithstanding this, he approached Mr Darryl Brunner (Distribution Supervisor - Day Shift for the Employer) on 24 January 2007 and said that he would like some time off in the week beginning 29 January 2007. Mr Brunner said that he would talk to the Applicant's manager (Mr Michael Davis) about this possibility. Later on 24 January 2007, Mr Brunner did so. During their discussion, Mr Davis instructed Mr Brunner to advise the Applicant that it was not possible to grant his request because they would already be short-staffed in the following week. Mr Brunner did not see the Applicant again on 24 January 2007 in order to advise him of Mr Davis' decision.

On the morning of Thursday 25 January 2007, the Applicant approached Mr Brunner and said that he was gong to fill out an Application For Annual and Other Leave form. Mr Brunner said he very much doubted that annual leave would be granted as there were already going to be too many people away during the following week. The Applicant then said words to the effect 'Why not? Everybody else takes holidays when they want why shouldn't I'. Mr Brunner responded with words to the effect 'OK. Put your form in and see what happens.'

The Applicant completed the Form and left it on Mr Davis' desk on Thursday 25 January 2007, which was the last working day before his intended period of annual leave (bearing in mind that Friday 26 January 2007 was a public holiday). […]

The Form left on Mr Davis' desk had not been dated by the Applicant. In the Form, the Applicant requested a period of 5 days' annual leave from 29 January 2007, with a return date of 5 February 2007." [2]

[13] On Thursday 25 January 2007, Mr Davis put the roster up for the following week. The Applicant was included in the roster to work during that week. Mr Davis was occupied in a meeting for most of that day, Thursday 25 January 2007.

[14] The Respondent stated that the Applicant advised Mr Mahon that he required holidays in the ensuing week as he had scheduled job interviews for 'work in gyms' and required a couple of days off in order to attend those interviews.

[15] The Respondent submitted that Mr Mahon stated to the Applicant that he could not have the week off because they were too busy, but he may be able to organise for a couple of days off. The Tuesday and Thursday were discussed as possible days of leave. Mr Mahon stated to the Applicant that he would need to see Mr Davis with regard to the matter.

[16] Mr Mahon discussed the matter with Mr Davis with respect to the Applicant having at least two days off to attend interviews. The Respondent stated that later on in the afternoon on 25 January 2007, Mr Davis spoke to the Applicant with regard to the leave application. At this time, the Applicant stated that he needed the whole week off work. Mr Davis advised the Applicant that he was 'already at the limit' in terms of employees that were taking leave and could not approve any more leave during the following week.

[17] The Respondent submitted that the Applicant did not receive the appropriate authorisation for the leave, as follows:

"The Applicant again stated to Mr Davis that he needed to take the whole week off and stated that Mr Davis should cancel the leave already approved for one of the other employees. Mr Davis advised the Applicant that he had put his leave request form in too late and all the other employees had already had their leave for the following week approved some time ago.

Mr Davis made it clear that the leave was not approved and that it was out of the question for the Applicant to take the whole week off. Mr Davis told him that they might be able to arrange for him to have a couple of days off work, but that definitely could not include Monday because it was going to be a very busy day. Mr Davis said that he was aware the Applicant had earlier mentioned to Mr Mahon that Tuesday and Thursday were particularly important.

The Applicant did not confirm this and started to complain to Mr Davis about how other employees get leave approved late and inquired why it was not possible for him to do the same. Mr Davis explained that he was prepared to approve annual leave late in circumstances where staff levels are sufficient to cover the roster requirements for the relevant period. However, in this case, it would not be possible as he was already operating at the limit due to periods of already approved leave and people leaving their employment with the Employer.

Mr Davis asked the Applicant to think about which 2 days were most important for him to have off work in the following week and to advise Mr Davis so that Mr Davis could explore options for the Applicant. The Applicant appeared agitated to Mr Davis and stated that he was busy and couldn't talk to him now. Mr Davis told the Applicant to see him later in the day so they could discuss the matter.

The Applicant did not approach Mr Davis again regarding his request for leave. When Mr Davis finished work at approximately 8:00pm on 25 January 2007, he went looking for the Applicant in the chiller and also in the smokers hut but could not find the Applicant. Mr Davis assumed that, because the Applicant had not bothered to see him or ring him before he left work, he must have decided not to press his request for annual leave further and that he would attend work the following week." [3]

[18] Friday 26 January 2007 was a public holiday and the Applicant was not required to attend work. The Applicant did not attend work on Monday 29 January, Tuesday 30 January or Wednesday 31 January 2007. Mr Davis stated that he endeavoured to contact the Applicant by telephone on a number of occasions throughout that time, but the Applicant did not answer the calls.

[19] Accordingly, Mr Mahon and Mr Davis assumed the Applicant had decided to leave the Respondent's employment as he had not received the appropriate approval for the requested annual leave and because he had admitted that he had a number of job interviews to attend in the week beginning 29 January 2007. Accordingly, on Wednesday 31 January 2007, Ms Victoria Bradford, Group Manager Human Resources for the Respondent, forwarded correspondence to the Applicant:

"Unless you are able to provide an exceptional reason explaining your absence and lack of notification we have no option but to assume that you have abandoned your employment.'

The Respondent then received a telephone call the next day from the Applicant. The Applicant called Ms Bradford on Thursday 1 February 2007 at approximately 3:00pm. The Applicant said that:

He had the leave owing and that other people had been allowed to take leave recently without the required 2 weeks notice;

he had 60 hours annual leave accrued so he thought 'screw them';

he had been employed with the Employer for 2 years and he had not taken any leave during that time, only about 4 sick days.

Ms Bradford corrected the Applicant in relation to the last point by advising that he had actually taken approximately 16 sick days which had been both paid and unpaid. Ms Bradford repeated what Mr Mahon had told her, stating that Mr Mahon thought that the Applicant had said that he wanted Tuesday and Thursday off.

The Applicant stated that Mr Mahon had told him that Mr Davis would get back to him regarding his request for leave on 25 January 2007 but never did so. Ms Bradford asked the Applicant why, if he thought Mr Davis was to get back to him but did not do so, he had decided to take the week off anyway and further decided not to call Mr Davis on Monday 29 January 2007. The Applicant replied by saying that he assumed they would know because he had made it clear that he wanted the week off.

The Applicant then asked about his employment. Ms Bradford asked him if he had an exceptional excuse as was requested in the letter dated 31 January 2007. The Applicant said yes - that he had plenty of job interviews to go to. Ms Bradford told the Applicant that he needed to put his response in writing and that they would meet on Monday 5 February 2007 to discuss." [4]

[20] At a meeting on Monday 5 February 2007 with Mr Tos, Mr Mahon, Ms Bradford and the Applicant, the Applicant presented a letter. This letter stated as follows:

In response to your letter dated 31 January 2007, I would like to bring the following points to your attention.

On Tuesday 23 January 2007, I spoke to Mick Davis about taking a week's annual leave. At that time, I had over 60 hours of annual leave accumulated. Mick told me at that time that I should see him tomorrow (Wednesday) about the leave. I went to Mick on the Wednesday and again he suggested I come back tomorrow (Thursday).

I approached Mick again on the Thursday morning and he suggested that I should see him later that day. At this point, I went to see Tom Mahon about my leave and explained that during the time I was requesting the people from my department who were currently on holidays would be back at work.

After reviewing the facts, Tim said that he couldn't see a problem with me taking the time off. Tim then told me he would see Mick and let him know to see me regarding my leave. At the time that Mick came to see me, I was extremely busy and as there were not enough people on the line to allow me to stop to speak to him. He then said he would return to see me later but failed to do so. As Mick did not come back to see me, and the Friday was a public holiday, I assumed my request for leave had been accepted.

Recently, I have done many long days and some weekend work and felt that I needed to have a week's holiday.

It appears there has been a lack of communication in this whole situation and I wish to confirm that it was not my intention to abandon my employment.

In the past 2 years of my employment at Golden Cockerel, I have done my best to go beyond the call of duty to play my part in keeping the company running smoothly." [5]

[21] Mr Mahon denied that he had told the Applicant that he could have the week off. Mr Davis confirmed that he had told the Applicant that he could not have the week off. The Respondent submitted that Ms Bradford advised the Applicant at the result of the meeting that she would consider what had been said during the meeting. She emphasised that the Applicant had already received a final written warning and the next stage was termination.

[22] A further meeting was scheduled and the Applicant did not perform duties until this meeting on 5 February 2007. After the meeting, Ms Bradford sought to verify a number of matters that the Applicant had raised, whilst he had been working on the line on 25 February 2007 when approached by Mr Davis.

[23] Ms Bradford verified these issues with the Applicant's leading hand, Mr Russell Pelling. Mr Pelling stated to Ms Bradford that he had overheard Mr Davis state to the Applicant that he could not have the week of annual leave. Furthermore, Mr Pelling stated that after Mr Davis' discussion with Mr Kelly on 25 January 2007, Mr Pelling spoke with the Applicant and the Applicant had told Mr Pelling that he had to see Mr Davis later to discuss the matter again. Mr Pelling stated that he reinforced with the Applicant that needed to ensure that he had prior approval before taking annual leave.

[24] A further meeting was held with the Applicant on 6 February 2007. He again relied on the material in his letter on 5 February 2007. Ms Bradford had put to the Applicant what Mr Pelling had told her. In response, the Applicant relied on his version of events in the 5 February 2007 letter.

[25] The Respondent submitted that Ms Bradford confirmed with the Applicant that she had three senior people who had provided statements that the Applicant was clearly told he could not take the leave. One of these people was Mr Kelly, who confirmed he had heard the Applicant being told by Mr Davis that he could not take the leave.

[26] The Respondent stated that Mr Pelling further confirmed to the Applicant himself that the Applicant could not take leave without permission. In response, The Applicant maintained that Mr Mahon said he could have the week off and that Mr Davis had not told him anything, but that he would come back to see the Applicant later on 25 January 2007, but had not done so.

[27] Mr Bradford provided the Applicant with a further opportunity (until Wednesday, 7 February 2007) to respond to the information provided by Mr Pelling.

[28] The Respondent stated that the reasons for termination were as follows:

"The Applicant's employment was terminated as a result of him having to abandon his employment from 29 January 2007 until 5 February 2007. The circumstances leading to the termination of the applicant's employment (described in details above at paragraph 4) constituted clear further breaches of company policies and disregard for directions from management of the Employer. This behaviour must be viewed in the context of the Applicant having been issued a final written warning on 17 November 2006, making it clear that further instances of unacceptable behaviour or misconduct could lead to the termination of his employment.

The Applicant submits that he did not abandon his employment as he was under the assumption that he was on approved annual leave for the relevant period (as stated in his 4 February letter and in the first paragraph at Item 10 of the application).

The facts in this matter, as described above and according to 3 senior representatives of the Employer involved in the matter do not support the Applicant's claim. The 3 senior representatives were the Applicant's manager (Mr Michael Davis), supervisor (Mr Tom Mahon) and leading hand (Mr Russell Pelling).

Even if the Applicant's submission is correct, it is clear that the Applicant was aware his leave was not approved (refer to last paragraph at item 19 of the Application) where the Applicant admits the "he did not have official clearance for his leave".

Despite the Applicant's further submission of having a 'good disciplinary record' (refer to the last paragraph at Item 19 of the application), it is clear that he was on a final warning issued on 17 November 2006, a little over 2 months prior to him disregarding his manager's directions and taking unauthorised leave."

[29] The Respondent submitted that based on the authorities, to make an order that the Application should be summarily dismissed, the Commission must be satisfied that there is no real question to be tried, or that the claims made by the Applicant are clearly untenable or cannot succeed. [6]

[30] The Respondent submitted that the application arises out of a clear case of abandonment of employment, and accordingly, the Commission does not have jurisdiction to hear the matter. The Respondent submitted that on the material presented, that this is a case where the Applicant arguably abandoned his employment and therefore his claim pursuant to s.643 (1) (a) is untenable.

[31] The Respondent further stated the Employer followed a fair process in dealing with the Applicant's abandonment of employment and allowed him the opportunity to explain his absence from the workplace. Furthermore, the Respondent stated that in the event the Commission is not satisfied that the Applicant abandoned his employment, the Employer would have been justified in terminating the Applicant's employment based on the final warning that the Applicant had received on 17 November 2006. The Respondent emphasised that it had been clearly stated to the Applicant that further instances of unacceptable behaviour or misconduct could lead to the termination of his employment. This background would be examined against the Applicant's clear breach of company policies relating to the annual leave approval process, whereby he proceeded to take the week off when he was aware that his application for leave had not been authorised.

[32] The Respondent stated that the Applicant was clearly aware his application for leave was not approved and referred to the last paragraph of item 19 of the Applicant's application to the Commission, where the Applicant admits that "he did not have official clearance with his leave".

[33] The Respondent stated that on all of these grounds, that in the circumstances, the Applicant's application is frivolous, vexatious or lacking in substance.

[34] The Applicant submitted that on his version of events, his dismissal was not for a valid reason, or alternatively, was harsh, unjust and unreasonable and therefore there are issues to be heard and determined.

[35] The Applicant denies that he abandoned his employment, but rather submits that his employment was terminated at the initiative of the Respondent for alleged misconduct. The Applicant referred to the burden of proof on the Respondent to prove, on the balance of probabilities, that the application is frivolous, vexatious and lacking in substance.

[36] The Applicant submitted that the Respondent's submissions did not address the correct legal questions that need to be asked in relation to the Motion to Dismiss. The Applicant argued the principles for dismissing the application and relied on General Steel Industries Inc v Commissioner for Railways (NSW) [7]. Barwick CJ stated in this case that the jurisdiction to summarily dismiss an action should be sparingly employed and that the test to be applied is that the matter should be "so obviously untenable that it cannot possibly succeed", that is, it is "manifestly groundless"".

[37] The Applicant submitted a different version of the events, and the conversations that formed the basis for the dismissal. Firstly in relation to the final warning on the Applicant's record, the Applicant conceded he received the final warning for smoking. However he stated that he was told by Mr Mahon that his final warning would only have currency if he committed further breaches that were classified as breaches of discipline.

[38] The Applicant submitted that the incidents that resulted in the termination of his employment were classified by the Respondent as misconduct and a breach of discipline. The Applicant submitted that the distinction between these two strains of action is indicated by a separate box on the Respondent's record of disciplinary interview forms. One for conduct and one for breach of discipline. Accordingly, it was submitted that the final warning should not have been taken into account in deciding whether to dismiss the Applicant.

[39] Whilst the Applicant acknowledged in his submissions that the Respondent had a procedure for applying for authorised leave, the Applicant submitted that he had never applied for leave prior to this occasion. It was also emphasised that other Employees had applied for leave and had it approved at any time as long as it was submitted before the following week's roster was finalised.

[40] The Applicant submitted that the events that led to the termination were distinctively different to the account provided in the Employer's submissions. The Applicant submitted as follows:

"[…] that he attempted to request leave from Mr Davis on Tuesday 23 January and Wednesday 24 January but was told to come back at a later stage as Mr Davis was busy.

Realising that he needed to have his leave application in before the roster was out on the Thursday, the Applicant then went to his leading hand, Mr Pelling on either the Wednesday or the Thursday to enquire about where to find the leave application forms. Mr Pelling informed him that the forms were found in the pigeon holes near the chiller room.

On Thursday morning, the Applicant went to the pigeon holes and found the forms. He then approached his supervisor, Mr Brunner, to enquire about how to apply for leave and explained that he wanted leave for the following week.

In response to this, Mr Brunner stated words to the effect that "nobody's taking leave next week." Mr Brunner then started to laugh and walked away. The Applicant states that Mr Brunner's tone when making this statement was abrupt but that in his experience Mr Brunner was often attempting to make a joke when he used this tone and you could never tell whether he was serious or not.

The Applicant then went to Mr Pelling to enquire about where to talk the forms and Mr Pelling stated that he should take them to Mr Davis.

The Applicant filled out the forms and gave them to Mr Davis, who stated that he would "see what he could do." [8]

[41] When the roster came out for the following week, the Applicant noticed that he was rostered to work. The Applicant stated that at approximately 4.30pm, he approached Mr Mahon to query the leave. The Applicant considered Mr Mahon as his overall Manager and was senior to Mr Davis and Mr Pelling. He stated that if Mr Mahon said he could have the leave, it would be approved.

"The Applicant explained to Mr Mahon that he had applied for leave and it was not on the roster and that he needed the time off. Mr Mahon discussed with him the possibility of two days off but the applicant stated that he needed the whole week.

Mr Mahon stated to the Applicant that perhaps Mr Davis had just forgot to put in the Applicant's leave and that he could not see any problem with the Applicant taking a whole week off. Mr Mahon then stated that he would go and talk to Mr Davis about this.

At approximately 5:30, Mr Davis approached the Applicant to talk about the leave. At this time, the Applicant was in charge of organising the bins that collect the off-cuts of chicken as they come out of a large chute. To do this the Applicant has to ensure that there is always a clean, lined bin ready to place under the chute when the old bin is full. The bins fill very quickly and it requires a lot of concentration to ensure that none of the off cuts spill onto the floor.

It was when the Applicant was changing one of these bins that Mr Davis started to talk to him about his leave. The Applicant states that Mr Davis was requesting that the Applicant take two days off only but the Applicant repeated that he needed a week to attend to other business and that the two days was not enough.

The Applicant cannot recall any statement from Mr Davis that he could not have the leave.

The Applicant recalls that at this stage Mr Pelling was working in the vicinity of himself and Mr Davis but he believes that Mr Pelling was several meters away and that where he was working was extremely loud and in order for Mr Davis and the Applicant to hear each other, they had to shout." [9]

[43] The Applicant stated that Mr Davis had said to him that the Applicant was to come and see Mr Davis. When the production slowed down, they would sort something out. He looked for Mr Davis until approximately 7 pm. Mr Pelling confirmed to the Applicant that he had not seen Mr Davis all night.

"As Mr Mahon had earlier stated that there shouldn't have been a problem with the Applicant taking the leave and that Mr Davis had not told him that he could not have the leave but they would work it out but then failed to remain at work, the Applicant believed that there was no longer a problem with his leave and decided not to attend work the following week.

The following week, the Applicant states that the first time he was aware that there was any problems with the leave was on 1 February 2007, when he received a letter from Ms Bradford and he immediately rang the Respondent to work out the problem." [10]

[45] Ms Bradford's letter to the Applicant stated as follows:

We note that you have not attended work since the 25th January 2007. Since then we have had no contact in relation to your absence.

As you would understand, running our operation requires planning and if we are unaware of whether people will be attending work or not, it makes this process very difficult. Hence, Mick Davis has tried to contact you on a number of occasions but with no success.

Unless you are able to provide an exceptional reason explaining your absence and lack of notification we have no option but to assume that you have abandoned your employment. Therefore, any monies owing to you will be provided when you return all company property in your possession.."

[46] The Applicant takes issue with a number of statements made by Mr Mahon and Mr Davis as follows:

"The Applicant states that at the same meeting, Mr Mahon then changed his recollection of the events and stated that he did go and see Mr Davis but only about having two days off.

The Applicant also states that at the first meeting, Mr Davis stated that he remained at work on the Friday night until 9 p.m. and that he was in his office the entire time. When questioned about this, Mr Davis' story changed to Thursday night as the Friday was a public holiday. The Applicant also states that when questioned about time that the Applicant's leave request was handed in and it's current location, Mr Davis responded that he had handed it in on either the Monday or the Tuesday but that he could not produce it at the meeting as he could not find it.

The Applicant had a second meeting on Tuesday 6 February with Ms Bradford Mr Mahon and Mr Tos to discuss the matter further. At this meeting, the Applicant states that Mr Mahon's recollection of events changed again. This time Mr Mahon stated that the Applicant came to see him about the week off and that he didn't think it would be a problem to have it off but he would have preferred only two says but would talk to Mr Davis about having a week off.

On the final meeting on Wednesday 7 February Mr Mahon confirmed his recollection of events from the Tuesday meeting." [11]

[47] The Applicant submitted that the he was unaware of the processes that were involved in the application for leave, and importantly that at no time was he told by Mr Davis and Mr Mahon that he could not have a week's leave. Rather the Applicant submitted that he was left with the impression by Mr Davis and Mr Mahon that although their preference was for two days leave, there shouldn't have been a problem with him taking leave.

[48] In this regard, the Applicant's submissions state that the Applicant's case should be "taken at its highest", in accordance with the tests in the matter of General Steel. In accordance with this test, the Applicant submitted:

"That his version of events surrounding his dismissal, supports his overall submission that his dismissal was for no valid reason, as even though he had not received proper clearance for his leave, there was a culture of not following the proper leave procedure and that the actions of his superiors gave him the impression that his leave had not been rejected and that there was no reason he could not take the leave.

The Applicant also submits that the Respondent's actions in dismissing him was harsh as the Applicant's absence from work stemmed from a lack of communication between the Applicant and the Respondent, in particular Mr Mahon and Mr Davis, about whether or not the Applicant was not allowed to take the leave and therefore did not warrant his dismissal." [12]

[49] The Applicant concluded that, given that there are varying factual accounts between the Applicant and the Respondent, it is reasonable that the Respondent discharge their onus with regard to the jurisdictional objection, that is, proving the application is so untenable that it cannot possibly succeed.

[50] Furthermore, the Applicant submitted that he did not abandon his employment, but rather, the Respondent made a decision to terminate his employment.

[51] The Respondent stated that, based on the events that unfolded (as set out above), the Applicant demonstrated with his actions that he no longer wished to be bound by the terms of his employment.

"As we have seen above, in this matter there is no dispute that the Applicant wished to have a weeks' leave. Therefore the Applicant submits that it seems highly unlikely that, when the Applicant failed to show for work on the Monday and Tuesday, the Respondent had no idea why the Applicant did not attend work.

The Respondent then submitted that they tried to contact the Applicant several times on the Monday and Tuesday. However, the Applicant has submitted that he had one missed call, from an unknown number, registered on his mobile for these days and was unaware of anyone attempting to contact him on his home phone number.

Finally, it is uncontested that the Applicant received the letter from the Respondent about his absence and he rang within a few days of the letter being sent to discuss the content of the letter and then presented to work on the following Monday, as per his leave request, with a letter explaining his reasons for not attending work in the proceeding week.

Therefore, the Applicant submits that, unlike the case of Tenix, he did not abandon his employment because, even though he failed to attend work for a week, there was a clear reason for his actions, known by both the Respondent and the Applicant and, once contacted by the Respondent about the problem of his attendance, the Applicant's actions clearly showed that that he still wished to remain bound by the terms of his employment as he responded to the letter and attended for work with a written reason the next available day.

The Applicant further submits that the causal event which triggered the termination of his employment was that the Respondent believed that his actions, in failing to report for work, constituted misconduct and warranted his dismissal. This is evidenced by the Applicant's record of disciplinary interview (document "G"). It is this decision by the Respondent that the Applicant submits was unfair and forms the basis of his application." [13]

[53] This matter has been determined on the papers pursuant to s.646(3) of the Act whereby a formal hearing is not required. In this respect, I have considered the provisions of s.648(1) of the Act. In accordance with s.648(2) of the Act, both the parties were invited to consider the issue of a hearing and to provide any information relevant to the consideration of this matter. Both parties provided written submissions and did not seek a hearing. Moreover, the Respondent made detailed submissions regarding the significant cost that would be incurred by their business in attending a jurisdictional hearing.

[54] It is recognised that granting a Motion to Dismiss an application prior to conciliation is a significant matter. In relation to the granting of such an order, Commissioner Harrison in Taminiau stated: 'Prima facie, the parties have a right to be heard and the merits of an application for relief should be fully tested against a submission that the application is 'frivolous, vexatious or lacking in substance'. [14]

[55] In assessing whether the matter is frivolous, vexatious or lacking in substance and whether there was an abandonment of employment, it is necessary to take into consideration the full factual matrix in terms of the context of events. Whether or not an employee abandoned his employment is a finding of fact. That is, "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)." [15]

[56] On the material before the Commission, the Applicant elected to leave his duties. That is, to take leave without the appropriate authorisation from his supervisors. The taking of this leave must be seen in the context that he had indicated that he wanted time off to undertake interviews to attain jobs "with gyms".

[57] He had expressed his dissatisfaction with the decision of management not to authorise his leave and the fact that his name clearly appeared on the roster to work [16].

[58] These combined facts indicated an intention on the part of the Applicant to, in fact, leave his job and seek employment elsewhere. These actions give rise to an intention to repudiate this contract of employment.

[59] It is necessary to give consideration to both of the jurisdictional objections with regard to the application being frivolous, vexatious or lacking in substance and whether a termination at the initiative of the Employer had not occurred. In this regard, the following was submitted:

"Pursuant to s.646 of the Act, where the Commission is satisfied that an application is frivolous, vexatious or lacking in substance in relation to s.643(1)(a), an order must be made dismissing the application.

The terms "frivolous" and "vexatious" were referred to in Dey v Victorian Railway Commissioners [17] where Dixon J stated: "a case must be very clear indeed" to justify summary dismissal and that "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process".

In the same judgement, Dixon J also cited the following passage from the judgement of O'Connor J in Burton v Shire of Bairnsdale [18]:

"Prima facie every litigant has a right to have matters of law as well as fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed." [19][20]

[60] The Commission has no jurisdiction in relation to an application pursuant to s.643 unless the termination of employment occurs at the initiative of the Employer. If, on the facts the employment terminates due to the Employee abandoning his employment, there is no termination at the initiative of the Employer and the jurisdiction of the Commission is not enlivened.

[61] However, summarily disposing of an action as frivolous and vexatious and a jurisdictional decision that an Employee has abandoned his employment will have the significant effect of removing the right of the Applicant to pursue his claim. Therefore, it is necessary in accordance with the authorities, to take the Applicant's evidence at the highest level. In this matter, there is a disparity between the versions of events of the parties.

[62] It is clear on the basis of the material that there was a policy for the application for leave. The Applicant had not followed this particular policy by not submitting his leave form two weeks prior to the planned leave being taken. The Applicant states he was unaware of this particular policy. I concur with the Respondent's submissions that the Applicant's submissions, taken at their highest level, are as follows:

"The Applicant admits that, notwithstanding the requirement to get 2 weeks advance authorisation for annual leave as stated on the application form 'he has witnessed other employees apply for leave and have it approved as long as it was submitted before the following week's roster was finalised and put up on the Friday'; [21] and

the Applicant realised in this case 'that he needed to have his leave application in before the roster was out on the Thursday' [22] (due to the Friday in the relevant week being a public holiday);[23]

[63] The roster commencing the week beginning Monday 29th January was finalised after the Applicant had submitted his leave application form. The Applicant was included on this roster to work. He was not shown on the roster as having been approved to take annual leave. The roster indicated leave approval for other employees, but not approved leave for the Applicant.

[64] The Applicant clearly took leave without it being approved. The Applicant conceded that:

"'he did not have official clearance for his leave'; [24] and that

'he had not received proper clearance for his leave'" [25]"

[65] In examining the Applicant's version of events at its highest, the following submissions in reply by the Respondent provide a summary of the Applicant's lack of authorisation to proceed on leave:

"…At the highest, in relation to his attempts to have his leave approved after the final roster had been posted, the Applicant submits that:

he 'cannot recall any statement from Mr Davis that he could not have the leave'; [26]

'that the last thing Mr Davis said to him was to come and see Mr Davis when the production slowed down and that they would sort something out'; [27]

'at no time was he told by Mr Davis and Mr Mahon that he could not have a week's leave'; [28]

there is no evidence that the Applicant made any further checks of the roster after making his further requests for his leave to be approved to see if the roster had been changed. Had he done so, he would have seen that no changes had been made to the roster despite his further requests;

if the Applicant's case is taken at its highest and it is assumed that the Applicant's factual contentions are established, [29] it is submitted that it was clear that the Applicant's leave was never positively approved and he remained rostered on to work. Even the combined effect of the Applicant's Submissions detailed above do not amount to it being reasonable for the Applicant to have:

'the impression that his leave had not been rejected and that there was no reason he could not take the leave'; [30] or

'assumed my request for leave had been accepted'; [31]

and decide on that basis not to attend work the following week without further contact with the Employer;

the Applicant never received approval for his leave and he made an assumption that it must have been acceptable for him to take leave anyway. He then failed to ring the Employer on Monday 29 January 2007, Tuesday 30 January 2007 and Wednesday 31 January 2007 in relation to his absence. The Applicant did not contact the Employer until Thursday 1 February 2007, after receipt of the Employer's letter dated 31 January 2007 regarding the abandonment of the Applicant's employment. [32]"

[66] The Respondent relied on the case of Sharam v Blue Tier Logging [33], as a persuasive authority_._ The case deals with similar circumstances and the decision of Commissioner Abey at first instance was affirmed by the Full Bench of the Tasmanian Commission[34].

[67] The Respondent relied on that decision, in support of the abandonment of employment, as follows:

"At first instance in Sharam v Blue Tier Logging, [35] Commissioner Abey dismissed the applicant's unfair dismissal application in analogous circumstances of unauthorised absence for a limited period. The applicant in that case argued that, although he was absent from work from early Thursday morning, missed a meeting with the employer's representatives later that day at his home because he was 'asleep' and only contacted the employer on the next Monday when he left a message, this did not justify his employment being terminated. The employer in that case claimed that the applicant had abandoned his employment by his 'irresponsible' conduct and his failure to attempt to contact the employer, and that this constituted a repudiation of his employment contract. Commissioner Abey found that it was reasonably open to the employer to conclude that he had abandoned his employment.

The Full Bench affirmed Commissioner Abey's decision and held: [36]

'Abandonment of employment is not quantified in time but requires an analysis of what happened at the time and a consideration of the intent of the employee. The behaviour in this case was irresponsible and somewhat cavalier, the lack of any attempt to explain such behaviour to the respondent in a reasonable period of time, particularly when such opportunity was provided, was in the view of the Commissioner a repudiation of the contract of employment.'

The Applicant submits that the Employer must have known why the Applicant did not attend work and that it was not entitled to treat the Applicant as having abandoned his employment. [37] In Sharam v Blue Tier Logging, arguments by the Applicant that:

the non attendance of the applicant for a few days was no more than absenteeism and could not be construed as a repudiation of his employment contract; [38] and

only in the case of prolonged and unexplained absenteeism, when it was apparent that an employee was not going to return to work within a reasonable time could a finding of abandonment be justified; [39] were rejected by the Full Bench."

[68] On the material that is presented to the Commission, whilst there is a disparity between the parties, the relevant facts are discernable. On the critical elements, the Applicant concedes that there was no approval for the annual leave, even though he considered that there may have been a misunderstanding.

[69] The Applicant's actions were the causal responsibility for the outcome in relation to his contract of employment. He had indicated he wanted time to undertake interviews. There was no confirmation of the original leave application or a reduced period of leave.

[70] The Applicant took the situation into his own hands. The Applicant's decision to take the leave, when it had not been approved indicated a repudiation of his contract.

[71] It is clear that the Commission does not have jurisdiction in an application filed pursuant to s.643 where there has not been a termination of employment at the initiative of the Employer. In this matter, it was clear that the Applicant did not have approval to take annual leave. He had earlier received a final warning. In not turning up to work for his rostered hours and taking leave of his own volition, he abandoned his employment. [40]

[72] It is apparent from the submissions and material provided in this matter, that the case does not admit a "reasonable argument" or a "good cause of action". On the Applicant's own version of events the Applicant's case is clearly untenable and unable to succeed. [41]

[73] The Motion to Dismiss the application on the grounds that it is frivolous, vexatious and lacking in substance is upheld. Accordingly, jurisdiction is not found for the application pursuant to s.643 of the Act and the matter is dismissed. I Order accordingly.

Printed by authority of the Commonwealth Government Printer

[1] Form R30, Notice of Motion to Dismiss dated 6 March 2007

[2] The Respondent's Submissions, page 3 paragraph 4.1 - 4.5

[3] The Respondent's Submissions, page 3 paragraph 4.10 - 4.14

[4] The Respondent's Submissions, page 3 paragraph 4.18 - 4.22

[5] The Applicant's response letter; The Respondent's submissions, attachment F

[6] Saville v Embassy of the Republic of Korea [17 [1949] HCA 1; (1949) 78 CLR 62 at 91-92

[18] [1908] HCA 57; (1908) 7 CLR 76, at p 92; [1908] HCA 57; 14 ALR 529, at p 534.

[19] Chapman v National Transcription Services Pty Ltd; 33 T10228 of 2002, 23/8/2002 per Commissioner Abey

[34] T10436 of 2002, 3/4/2003 per President Leary, Deputy President Watling and Commissioner Shelley - an appeal from a decision of Commissioner Abey, T10228 of 2002, 23/8/2002.

[35] T10228 of 2002, 23/8/2002 per Commissioner Abey

[36] see note 25 at paragraph 33

[37] see paragraph 28 of the Applicant's Submissions

[38] see note 25 at paragraph 20

[39] see note 25 at paragraph 21

[40] Rhodes v Tenix Defence Pty Ltd [41 Barwick CJ per General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 124, at pg.128.