TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Decision Appealed See T10436

Adrian Bruce Sharam
(T10228 of 2002)

and

Blue Tier Logging Pty Ltd

 

COMMISSIONER T J ABEY

HOBART, 23 August 2002

Industrial dispute - alleged unfair termination of employment - abandonment of employment - application dismissed

REASONS FOR DECISION

(1) On 3 June 2002, Adrian Bruce Sharam (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Blue Tier Logging Pty Ltd arising out of the alleged unfair termination of his employment.

[2] The matter was set down for hearing (conciliation conference) at "Lyndhurst", 448 Elizabeth Street, North Hobart at 9.30am Tuesday 2 July 2002.

[3] When this matter came on for hearing Mr C Gunson, a solicitor, sought and was granted leave to appear for the applicant. Mr D Durkin, together with Mr J Munro, appeared for the employer.

[4] Following preliminary submissions, the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This proved to be unsuccessful and the matter was set down for hearing in Launceston on 31 July.

[5] Evidence was taken from the following witnesses:

• Adrian Bruce Sharam, the applicant;
• Kelly John Barker, the applicant's immediate supervisor;
• David Alan Abraham, Operations Manager for the employer;
• Clinton Wayne Dawson, a work colleague of Mr Sharam;
• Jane Louise Wing, a part-time Office Administrator with the employer.

Background

[6] The employer is engaged in the business of timber harvesting, with 18 or 19 employees in a number of locations across the State. Small gangs operate as a team in felling and preparing timber for delivery to customers. By necessity this occurs on-site in the bush. Depending on location, the gang would either travel to the site and return each day or, in more remote locations, camp overnight.

[7] Mr Sharam had been employed by Blue Tier [or its predecessor] since 1995. He was classified as a "Class 3 Forwarder Log Handler Operator" under the terms of the Blue Tier Logging Enterprise Agreement 2001. Essentially this is a timber faller, the highest paid position in the gang.

[8] Mr Sharam was recognised by his employer as a very good faller with no questions as to his competence. Save and except some relatively minor verbal counselling, there was no evidence of any formal warnings issued against Mr Sharam.

[9] In January 2000, Mr Sharam suffered a workplace injury that necessitated approximately six months off work. In September 2000 he suffered a further injury, necessitating an absence of short duration. He gained a full medical clearance and returned to work without restriction.

[10] In November 2001, Mr Sharam slipped on a rock resulting in an injury known as rotator cuff tear. This was accepted as a workers' compensation claim and resulted in a further extended period of absence.

[11] On 21 February 2002, Mr Sharam returned to work on restricted duties. An external rehabilitation consultant prepared the Return to Work Guidelines. Relevantly, the Guidelines limited Mr Sharam's tasks to gang nailing and greasing sawlog ends and assisting with saw log measurement.1

[12] Subsequent rehabilitation programs dated 23 March and 1 May allowed for chainsaw operation of initially two hours per day, and then four hours per day.2

[13] All three programs indicated that Mr Sharam would work Monday to Friday, would be picked up for work at or around 5.30am, and driven home around 5.30pm.

[14] Whilst Mr Sharam's restrictions necessitated the engagement of a replacement faller, the evidence was that Mr Sharam remained a useful and productive member of the gang.

[15] There is however evidence that the relationship between the employer and employee deteriorated during this period of restricted duties. Whilst it was not quantified with any precision, it would appear that Mr Sharam was absent for approximately half the workdays in this period. Some of this was related to the workers' compensation claim [eg physiotherapy treatment] and some of it was unrelated sick or annual leave. There was also evidence of absences for the purposes of personal business.

[16] Mr Barker gave evidence that on a number of occasions Mr Sharam was, without prior advice, not at the agreed pickup point for the commencement of work. Mr Dawson supported this evidence.

[17] Mr Sharam was not however formally counselled or warned for any of these absences.

[18] On 23 May an incident occurred which ultimately led to the "termination" of Mr Sharam's contract of employment.

The Thursday 23 May Incident

[19] The facts relating to this incident are uncontested and can be summarised as follows.

(20] At approximately 10.15pm on Tuesday 22 May there was a telephone conversation between Mr Sharam and Mr Barker. Mr Sharam initially asked whether he would be picked up for work the following day. Mr Barker advised that the gang would be camping on the Thursday and Friday night, and that if Mr Sharam wished to return home, he would need to take his own vehicle. In accordance with previous practice, the Company would provide the petrol.

(21] Mr Sharam accepted this proposal, and they agreed to meet at the St Helens Service Station at 5.00am.

(22] It would appear that Mr Sharam had second thoughts about this arrangement. At 5.00am on Thursday 23 May Mr Sharam was at the service station as arranged. He had however decided not to take his own vehicle. His recollection of the exchange with Mr Barker was as follows:3

"Now, on this occasion you went to the servo and what happened at the servo?---Well, I just walked over and Kelly said, "Well, where's your bus?" And I said, "Well, I've been thinking about it," and I said, "I don't reckon it's fair, like I've got to travel up there and travel back." The fuel is only to get you there it doesn't cover maintenance and it's a fairly rough road, so you know it knocks your vehicles around."

(23] Mr Barker's recollection of the incident was:4

"Thank you?---And he just opened down the window and said, you know, to Blue, he said, "I'm not coming to work," and I just said, "Why's that?" and he said, "I'm not spoiling my vehicle to go to work because of the roads - condition of the roads," and I said, "Oh, well," I said, "We'll wait around and if you get your camping gear and come." He said, "No, because I'm not organised, haven't got none of my gear organised," and I said, "Well, we had that discussion last night," I said, "if you wanted to bring your vehicle well, that was all right, but if you wanted to camp sort of bring - get all your gear supplied and organised," and then after that - - - "

(24] Mr Sharam indicated that he had not made any preparations for camping, to which Mr Barker suggested that he should "look for another job", or words to that effect.

(25] Mr Dawson, who overheard the conversation, confirmed the substance of the above exchange.

(26] In his evidence, Mr Barker readily conceded that he did not have the authority to hire or fire.

(27] Mr Barker then telephoned Mr Abraham, advised him of the incident, indicated his frustration and asked Mr Abraham to sort it out.

(28] Later that morning Mr Abraham telephoned Mr Sharam at his home. He recalled the conversation as follows:5

"Can you please explain what occurred in that conversation?---I got hold of Adrian and I said, "What's going on?" He said, "I've been sacked." I said, "No, you haven't." I said, "Adrian, I need to meet with you to discuss your employment with this company." I made a time with him then on the phone.

What was that time?---3.30 to 3.45.

And where was that to take place?---At Adrian's house."

(29] Mr Sharam's recollection of the conversation was essentially the same. In addition he said that Mr Abraham told him to "Get yourself a witness".6 Mr Sharam said that as a consequence of the conversation he felt "blown out", "bamboozled", and "thought he was going to sack me".7

(30] Mr Abraham said he was apprehensive about the meeting and visited the Police Station prior to going to Mr Sharam's residence. This apprehension was based on a previous verbal altercation with Mr Sharam. He said that he wanted the police to observe that he had no scratches or bruises on him at the time.

(31] Questioned as to the purpose of the meeting Mr Abraham said:8

"Now, if the meeting had have taken place, what questions and what discussion did you intend to have with Mr Sharam?---I wanted to discuss with Adrian why he had the organised the night before to take his own vehicle instead of camping, and then at 5 o'clock in the morning when the boys are going to work he said he's not going to work - not camping or taking his own vehicle; and I wanted to discuss the reasons and see if he had a reasonable excuse for not going to work.

And if he didn't have a reasonable excuse, given the circumstances, were you contemplating terminating his employment?---Yes."

(32] And later:9

"If he had had a reasonable excuse he wouldn't (sic) have been given a formal written warning about those actions and gone from there."

(33] Mr Abraham attended Mr Sharam's residence at approximately 3.30pm. He said there was no response to his knock on the door. As to further attempts to contact Mr Sharam, Mr Abraham said:10

"And did you make any other attempt to communicate with Mr Sharam at that time?---Yes, I went back to my car and rang his home number. I then rang the office and there was still no answer at his place. I waited around - I don't know what it was - half an hour, three-quarters of an hour then, and I drove off. I came back. There was still no one there. I rang again that afternoon. It would've been, I think, 5 o'clock-ish, and then after tea again I went back up to his house - this is in the evening - it would be 7.30, 8 o'clock."

(34] Mr Abraham said there was no response when he rang Mr Sharam at approximately 7.30pm. In addition Mr Abraham said he asked a person he knew to go round the hotels and RSL club that evening in an effort to locate Mr Sharam and ask him to attend the meeting. Apparently these efforts were unsuccessful.

(35] Mr Sharam's explanation for his non-attendance at the 3.30pm meeting was that he was "in bed asleep"11 and did not wake up until 4.30 or 5.00pm.

(36] Mr Abraham returned to Mr Sharam's residence at approximately 7.30am on Friday 24 May. He knocked on the door and telephoned, but there was no response. Mr Sharam agreed that he was elsewhere at the time.

(37] Mr Sharam agreed that he did not attempt to contact his employer at any stage after 3.30pm on 23 May, or on the 24, 25 or 26 May. He said that he "had a gut full of nerves", and was "in turmoil". He said that he did not have Mr Abraham's mobile phone number.

Monday 27 May

(38] At approx. 9.00 or 10.00am on Monday 27 May, Mr Abraham received a text message on his 24-hour mobile phone answering service. The message was from Mr Sharam and stated:12

"Where were you on Friday? I was waiting for you."

(39] Mr Abraham said he was, at the time the message arrived, in the process of drafting a letter to Mr Sharam concerning his future employment. That letter was not sent.

(40] Mr Abraham telephoned Mr Sharam in the presence of Ms Wing, who had been asked to witness the conversation. Mr Abraham took contemporaneous notes of the ensuing conversation. His evidence was as follows:13

"So I rang Adrian on 27 May and I had a list of questions I had to ask. I asked Adrian, I told Adrian, "I don't understand the message on my phone."

MR MUNRO: What did Adrian say to that?---Adrian said, "Where were you on Friday, I was at home waiting."

How did you respond to that?---My response was, "I was at our agreed meeting place on time; where were you?"

And what did Mr Sharam say?---Mr Sharam said, "Well, I was at home."

You can run through the rest of the conversation?---Yes. I then said to Adrian, "I waited for almost two hours backwards and forwards and ringing." Adrian said to me that he was in bed asleep. I then said, "Well, where were you on Thursday, because the meeting was Thursday, not Friday," and Adrian's response was, "Well, I must have been in bed on Thursday." I asked Adrian then, "Why didn't you leave a message on my message service or my phone," and Adrian's response was, "I couldn't reach the message service." I then advised Adrian that we were sick of his antics and he obviously didn't regard discussing his employment with the company important and his employment had been terminated by himself. I advised him then that his entitlements would be mailed to him and that if he was to take legal action there were strict time limits applying in which to do so. That was the end of the conversation."

(41] The evidence of Ms Wing and Mr Sharam confirms the accuracy of this account.

Mr Barker's Diary

(42] Mr Barker said that, as a supervisor, he habitually made daily diary entries as to the events of the day. These diary entries were made at home at the end of the day and recorded matters such as weather, hours worked, absenteeism, production and any incident of note. His diary was entered into evidence14 and used to substantiate a number of instances whereby Mr Sharam had not presented at the agreed pickup place.

(43] Mr Gunson submitted that, for the following reasons, little reliance should be placed on the diary evidence:

• The diary commenced a few days prior to the implementation of Mr Sharam's return to work plan and finished a few days after his termination.

• There were no diary entries between 4 June and 30 June, and resumed the day before the first hearing date.

• The style of certain entries relating to Mr Sharam suggests that they may have been added after the event.

(44] Mr Gunson submitted that an inference could be drawn that this diary was brought into existence to record Mr Sharam's return to work program to be used at a later stage to justify a subsequent termination of his employment.

(45] I accept that the coincidences referred to above are quite remarkable and not adequately explained. I therefore place little or no weight on the diary entries.

(46] This does not however alter the uncontested evidence collaborated by Mr Dawson that, on occasions, Mr Sharam did not present for work at the agreed pickup point.

Submissions of the Employer

(47] Mr Munro submitted that Mr Sharam, through his own actions, had abandoned his employment.

(48] There were a number of occasions in the past when Mr Sharam had used his own vehicle to travel to work; as he had on other occasions camped on site with the gang.

(49] On this occasion Mr Sharam had agreed with Mr Barker as to travelling arrangements, only to renege on this agreement at the last moment. Despite this change of heart, he had not made preparations to camp, meaning that Mr Sharam had no intentions to attend for work on that day.

(50] In the circumstances the employer made arrangements to meet with Mr Sharam later that day to discuss the situation. The arrangements for the meeting were reasonable and there was no confusion as to when and where the meeting was to take place.

(51] Mr Sharam had failed to attend that meeting without reasonable excuse. He made no effort to contact the employer either that day or on the three subsequent days. He stated that he did not have Mr Abraham's mobile phone number yet managed to leave a message on the following Monday morning.

(52] Mr Sharam failed in his obligation to be available for work or to attend the meeting as required by Mr Abraham. The employer went out of his way to try and locate Mr Sharam in order that the meeting could proceed. That, Mr Munro submitted, amounted to a fundamental breach of the contract of employment, which Mr Abraham reasonably construed as constituting an abandonment of employment.

Submissions of the Applicant

(53] Mr Gunson submitted that, rather than an abandonment of employment on Mr Sharam's part, the evidence points to a termination at the initiative of the employer. He said that the employer, faced with an ongoing workers' compensation claim, had grasped the first opportunity to get rid of the worker and dressed it up as an abandonment of employment.

(54] Mr Gunson raised the question of credit for witnesses Barker and Abraham, pointing to confused recollection and what Mr Gunson considered to be evasiveness. He contrasted this with evidence of Mr Sharam which, Mr Gunson said, was given "confidently, openly and frankly".

(55] Mr Gunson submitted that abandonment of employment requires either a positive assertion from the worker, or alternatively the conduct of the worker is such as to constitute a repudiation of the contract of employment. Mere absenteeism, and in this case limited absenteeism, does not constitute an abandonment of employment.

(56] At the highest level there is one case of unauthorised absenteeism on Friday 24 May. Mr Gunson said that it might not even be that if the employer failed to comply with the requirement under the return to work program to pick Mr Sharam up in the morning and take him to the work site.

(57] If the employer's contention as to abandonment of employment is to be rejected, as it should be, Mr Gunson submitted that there is no valid reason for termination.

(58] There was no evidence as to prior warnings relating to absenteeism. The conduct of the morning of 23 May might have warranted formal counselling, but it certainly did not amount to an abandonment of employment or a valid reason for termination.

(59] Mr Gunson submitted that even if the Commission was against him on the question of valid reason, the denial of procedural fairness was profound. The Company Policy and Procedures document15 had not been followed; Mr Sharam had not been invited to return to work, nor had been given the opportunity to have representation during the telephone conversation of 27 May.

(60] The inevitable conclusion must be, Mr Gunson submitted, that there was an unfair termination at the initiative of the employer. The appropriate remedy is reinstatement, or if the Commission considers reinstatement to be impracticable, substantial compensation.

Findings

[61] I deal firstly with the question of witness credit. The three key witnesses, Messrs Sharam, Barker and Abraham, all at various times struggled with recollection and may have given the impression of being evasive. My own view is that this perception is an outcome of witnesses finding themselves in an environment which was totally foreign and which, in their eyes, may have been perceived as hostile.

(62] Importantly, the critical facts in this matter are not at issue and I make no adverse finding as to witness credit.

(63] I turn now to the incident at 5.00 am on 23 May. There can be no doubt that Mr Sharam had agreed to take his own vehicle to work and he withdrew from this agreement at the very last minute. Further, he had not made preparations for camping even though he had camped on some previous occasions. I therefore conclude that Mr Sharam had no intentions of attending for work on 23 May.

(64] I discount the item in the Return to Work Guidelines, which states that Mr Sharam will be picked up and driven home each day. This was not a fundamental component of the program and had not been rigorously applied in the past. Importantly it was not a factor relied upon by Mr Sharam in refusing, at the last minute, to take his vehicle. Mr Sharam's concerns revolved around inadequate compensation for the wear and tear on his vehicle.

(65] I observe in passing that Mr Sharam may well have had a legitimate issue with his employer. However, 5.00am when the gang is set to travel to the workplace is not the time to raise it.

(66] I also discount the previous incidents whereby Mr Sharam had not presented for work at the agreed pickup point. It is clear from the evidence that Mr Sharam had not been warned or counselled as a consequence of these incidents. The 23 May behaviour, coming on the top of these previous incidents, unquestionably and not unreasonably, gave rise to a sense of frustration, perhaps anger, on Mr Barker's part. I also have little doubt that this combination of factors led to Mr Barker's comment about "finding another job", an expression which I suspect was a product of exasperation more than anything else. The previous incidents play no higher role than explaining Mr Barker's reaction to Mr Sharam's behaviour at 5.00am on 23 May.

(67] I discount any evidence going to the question of a deteriorating relationship between Mr Sharam and his employer. In the absence of any counselling or warnings, such evidence is of little assistance. In the circumstances this matter must stand or fall on the events of 23 May and beyond.

(68] I find that the behaviour of Mr Sharam at the pickup point to constitute misconduct of a quite serious nature. It would certainly justify counselling and indeed a formal warning. However, on a stand-alone basis [as it must be viewed] it would be unlikely to constitute grounds for summary dismissal. I also find that it did not amount to an abandonment of employment.

(69] The question to be decided is whether the subsequent behaviour of Mr Sharam amounted to an abandonment of employment?

(70] I accept Mr Gunson's submission that there has not been a positive assertion on the part of Mr Sharam to the effect that he abandoned his employment. The question therefore is whether or not the conduct of Mr Sharam constituted a repudiation of his contract of employment.

(71] It is possible that Mr Sharam interpreted Mr Barker's comment about "finding another job" as meaning he was sacked. I consider that to be unlikely, as Mr Sharam's own evidence is that he was still contemplating driving to the work site when Mr Abraham telephoned. Either way, Mr Abraham quickly cleared up any misunderstanding in the subsequent telephone conversation.

(72] The arrangements for the meeting later that day are critically important. I am satisfied that Mr Sharam was aware that the meeting was to be at 3.30pm that day [Thursday] at his residence. Further I am satisfied that Mr Sharam was aware of the subject matter of the meeting and that he was to arrange to have a witness present. In these circumstances Mr Sharam must have been aware that this was a particularly important meeting.

(73] It is also significant that the meeting was to be at Mr Sharam's residence at a time when he would normally have been at work. Hence the meeting should not have imposed any inconvenience to Mr Sharam.

(74] I do not accept that Mr Abraham had a preconceived view that Mr Sharam was to be terminated, although this was a possibility.

(75] From the evidence it is clear that Mr Abraham went to considerable lengths to facilitate the meeting at 3.30pm and subsequently.

(76] Mr Sharam's explanation for his non-participation was that he was in bed asleep. Given the gravity of the meeting and the clarity of the arrangements, I find this to be a quite extraordinary, and indeed unacceptable, explanation.

(77] If we are to accept this explanation as being true, Mr Sharam made no attempt to contact Mr Abraham when he awoke an hour or so later. Indeed he did not make any attempt to contact his employer until the following Monday morning. His excuse that he did not have Mr Abraham's mobile phone number is not plausible given that he left a message on Mr Abraham's message service on Monday 27 May.

(78] Mr Sharam said that he "had a gut full of nerves" and was "in turmoil". Whilst this may well have been the case it is certainly not an acceptable explanation for failing to contact his employer, particularly as the turn of events was entirely of his own making. It raises the rhetoric question, if no contact for four days is to be considered acceptable, then at what point of time does it become unacceptable?

(79] In my view failure to attend the 3.30pm meeting was extremely serious. Not to make any attempt to contact Mr Abraham when he awoke is the point whereby abandonment of employment became an issue.

(80] I find that the conduct of Mr Sharam subsequent to 3.30pm on Thursday 23 May amounted to a repudiation of his contract of employment. In all the circumstances I find that it was reasonably open for the employer to conclude that Mr Sharam had abandoned his employment.

(81] Pursuant to s 21[2][c] of the Act, the application is dismissed.

 

Tim Abey
COMMISSIONER

Appearances:
Mr C Gunson, a solicitor, for Mr A B Sharam.
Mr J Munro, with Mr T Brown and Mrs J Abraham, for Blue Tier Logging Pty Ltd.

Date and Place of Hearing:
2002
July 2
Hobart
July 31
August 1
Launceston

1 Exhibit A17
2 Exhibits A18 and A19
3 Transcript PN 304
4 Transcript PN 583
5 Transcript PN 863
6 Transcript PN 328
7 Transcript PN 330 & 331
8 Transcript PN 874 & 875
9 Transcript PN 1485
10 Transcript PN 870
11 Transcript PN 534
12 Transcript PN 896
13 Transcript PN 908 and following
14 Exhibit R2
15 Exhibit R1