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T10436

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against an Order

Adrian Bruce Sharam
(T10436 of 2002)

and

Blue Tier Logging Pty Ltd

 

FULL BENCH:
PRESIDENT P L LEARY
DEPUTY PRESIDENT R J WATLING
COMMISSIONER P C SHELLEY

HOBART, 3 April 2003

Appeal against a decision handed down by Commissioner Abey arising out of T10228 of 2002 - Appeal dismissed - decision confirmed

REASONS FOR DECISION

[1] In matter T10228 of 2002 Commissioner Abey dismissed an application, lodged pursuant to s.29(1A)(a) of the Industrial Relations Act 1984 (the Act), by Adrian Bruce Sharam (the appellant), alleging that his termination of employment by Blue Tier Logging Pty Ltd (the respondent) was unfair.

[2] Commissioner Abey found:

".......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."

[3] Mr Sharam has appealed that decision and cites the following grounds of appeal:

"Appeal ground 1

That the learned Commissioner at first instance erred in law by finding that in all the circumstances the appellant abandoned his employment with the respondent.

Appeal ground 2

That the learned Commissioner at first instance acted on wrong principle in determining that in all the circumstances the appellant abandoned his employment with the respondent.

Appeal ground 3

That the learned Commissioner at first instance did give irrelevant weight to irrelevant matters, namely:

(a) that the appellant had the mobile telephone number of an officer of the respondent when such allegation was not put to the appellant in cross-examination and hence he did not have the opportunity to respond to the allegation;

(b) that the evidence of the respondent's witnesses David Abraham and Kelly Barker, was accepted in circumstances in which their evidence should not have been accepted unless corroborated by other witnesses or independent witnesses.

Appeal ground 4

That the learned Commissioner at first instance gave insufficient weight to relevant matters, namely:

(a) the evidence of the appellant where it conflicted with the evidence of the respondent's witnesses;

(b) that the appellant's financial circumstances were such that he could not afford to abandon his employment;

(c) accepting the evidence of the respondent's witnesses when such evidence:

    (i) was not put to the appellant in cross-examination;

    (ii) the appellant did not have the opportunity to respond to it;

    (iii) it was adverse to the interests of the appellant;

    (iv) the said evidence was not corroborated by other witnesses or independent witnesses.

Appeal ground 5

That the learned Commissioner made a mistake as to the facts, namely:

(a) that the appellant knew the mobile telephone number of an officer of the respondent; and

(b) that he failed to find that the respondent knew the mobile telephone number of the applicant;

(c) that he failed to find that the respondent believed or suspected that it was terminating the employment of the appellant as opposed to the appellant having abandoned his employment;

(d) that he found that the appellant had abandoned his employment with the respondent;

(e) that he accepted the factual assertions made by the respondent's witnesses, David Abraham and Kelly Barker, when such assertions were not corroborated by other or independent witnesses when such assertions were adverse to the interests of the appellant and/or were not put to the appellant in cross-examination.

Appeal ground 6

That the decision of the learned Commissioner at first instance was plainly unreasonable or unjust in all the circumstances."

[4] In considering an appeal the Commission relies on the principles established in the decision of the High Court in House v The King (1936) [55CLR499, at 504-505 per Dixon, Evatt and McTiernan] which provides:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

Background

[5] The appellant in this matter was employed by the respondent as a timber faller and, according to the decision of Commissioner Abey, was "recognised by his employer as a very good faller with no questions as to his competence."

[6] The appellant had periods of absence on workers compensation which Commissioner Abey briefly summarised as follows:

"[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.

[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.

[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."

[7] The Return to Work Guidelines, referred to by the Commissioner, proposed that the appellant be picked up for and delivered home from work, however it was conceded that such requirement was not rigorously followed and the appellant on a number of occasions chose to use his own vehicle to drive to and from work. This was a practice accepted by both the appellant and the respondent.

[8] The appellant had arranged to take his own vehicle to work on Thursday 23 May, 2002, and to meet the rest of the work group at 5.00am that morning. The appellant arrived at the scheduled time but then decided that he did not wish to take his own vehicle, he had not come prepared for camping and an offer to wait for him to collect the required camping gear was rejected. He did not perform any work for the respondent that day.

[9] Later that morning he was telephoned at his home by the respondent for an explanation as to what had occurred earlier that morning. A meeting was arranged for later that day at 3.30pm at the appellant's residence.

[10] The appellant did not attend the meeting as scheduled and made no further contact with the respondent until the following Monday. The respondent claimed that the appellant had abandoned his employment.

The appeal grounds:

[11] In general terms the appeal grounds rely on the claim that Commissioner Abey erred at law, acted on a wrong principle, gave "irrelevant weight to irrelevant matters", gave insufficient weight to relevant matters, made a mistake as to the facts and that the decision was unreasonable or unjust.

[12] The appellant dealt with appeal grounds 1 to 5 together as "they just really flow on from each other..."1

[13] Accordingly we consider appeal grounds 1 to 5 in the same manner.

[14] It was submitted on behalf of the appellant that the real issue was whether the appellant had abandoned his employment or that his employment was terminated at the initiative of the respondent.2

Witness evidence:

[15] In respect to the weight to be applied to the evidence of the witnesses the Commissioner said:

"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."3

[16] At paragraph 62 the Commissioner said:

"Importantly, the critical facts in this matter are not at issue and I make no adverse findings as to witness credit."

[17] In respect to the witness evidence the Commissioner had the benefit of hearing all of the evidence and observing the demeanour of the witnesses in the witness box, as such his finding and the weight accorded to the evidence was open to him and we detect no error. It is clear from his decision that he accepted that the issues which were critical to his determination were "not at issue."

[18] We agree with the Commissioner that the critical issues in the matter were "not at issue" and that a finding as to witness credit was not necessary as the disputed facts and contradictions were not matters on which the Commissioner placed any reliance.

[19] As we have noted previously Commissioner Abey found that the behaviour of the appellant "subsequent to 3.30pm on Thursday 23 May amounted to a repudiation of his contract of employment." That behaviour related to the appellant's evidence that he failed to attend the meeting with the respondent, that he was asleep at the scheduled time and awoke an hour or so later but made no attempt to contact the respondent until the following Monday morning (27 May).

[20] It was submitted on appeal that the non attendance of the appellant on the days in question was no more than absenteeism and that the Commissioner was in error in finding it to be a repudiation of the contract if employment.

[21] The appellant submitted:

"Absenteeism in itself does not immediately form a basis for a finding that an employee has abandoned their employment. Prolonged and unexplained absenteeism may constitute a finding of an abandonment of employment once it is apparent that the employee is not going to return to work within a reasonable time. Likewise, in some particular industries a very short period of absenteeism may constitute an abandonment of employment."4

[22] Further it was submitted that the period in which no contact had been made with the respondent was not "a particularly long period of time" and could not be characterised as repudiating the contract of employment but was simply a period of absenteeism.5

[23] It was said "There had been no formal warnings and the like given in relation to absenteeism...and the conduct of the employee in these circumstances is conduct that can be characterised as being quite normal for an employee who has had a serious incident with his employer - there is no doubt about that - and who is effectively only working half the time anyway with his gang out in the remote locality and either having to drive himself there or await the provisions of transport by his employer."6

[24] It was submitted that there was general confusion and inconsistency in the evidence particularly in relation to the 3.30pm meeting, the appellant's knowledge of mobile telephone numbers and attacks as to his character.

[25] The Commissioner found that where the evidence was critical to his considerations the facts were not at issue, the issue of the mobile telephone and whether the appellant was aware of a number for one of the respondent's officers, whilst discussed at length, is in our view of little consequence. The Commissioner found that the appellant's evidence in respect to that issue was "not plausible" considering that the appellant was able to leave a message on the respondent's telephone, albeit some days after the scheduled meeting. The issue was more about whether the appellant had the ability to make contact with the respondent, which he clearly did.

[26] The respondent to these proceedings submitted that it seemed "not believable" that the appellant was asleep at the time of the scheduled meeting being aware of the importance of the meeting and having been "told to take a witness."

[27] We do not agree that there was any confusion about the meeting scheduled for 3.30pm, the Commissioner was satisfied that the appellant was aware of the meeting which was scheduled to be at his residence. The evidence of the appellant before Commissioner Abey was that Mr Abraham told him that he would come around to the appellant's house "to sort of tell you where you stand" and "get yourself a witness." Further the appellant said he "thought he [Mr Abraham] was going to sack me...." He also said that he did not attend the coup where the rest of his gang was logging on that day (Thursday) as "...because he [Mr Abraham] rang up and said he was going to come up, so there wasn't any point, was there."

[28] The appellant left a message on the respondent's phone the following Monday questioning where the respondent had been on the previous Friday, we are unsure of the intention of that message as it referred to the day after the scheduled meeting. The respondent submitted that this was little more than an attempt to cover his (the appellant's) tracks.

[29] Whilst the appellant concedes that the behaviour would justify a warning, maybe even a final warning, it is argued that it did not constitute abandonment of employment. Further it was submitted that in the event that we find in favour of the appellant reinstatement was not practical as the relationship between the appellant and the respondent had deteriorated to such an extent, and had not been assisted by these proceedings, that it was unlikely to be restored. Accordingly the appellant claimed compensation of six months wages at his normal rate of pay of some $1001.00 gross per week.

[30] It was noted by the appellant that the Graphic Arts Award provides that an employee can be deemed to have abandoned their employment after two continuous and unexplained working days of absence and in this case the appellant was, in reality, absent from 3.30pm on one day and the following working day.

[31] Mr Sharam claimed that he did not hear Mr Abrahams when he arrived for the meeting at 3.30pm on the Thursday as he was "in bed asleep", he also said he did not hear his telephone ringing later that day when Mr Abrahams claimed to have called. The appellant made no attempt to contact the respondent until the following Monday, even though he was able to do so, and testified that "no one had got in touch with me." He said he was at his girlfriend's house on the Friday morning. His evidence lacks credibility and does not support his claim that he was concerned about his job particularly as it was his own evidence that he thought he was going to be sacked.

[32] The Commissioner found that it was the absence from 3.30pm onwards on Thursday 23 May which constituted the abandonment of employment and found that "...it was reasonably open for the employer to conclude that Mr Sharam had abandoned his employment."

[33] We find no error or that the Commissioner acted on any wrong principle. 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.

[34] We agree with his finding.

[35] In our view the behaviour of the appellant prior to the 3.30pm meeting, when considered with his behaviour after the scheduled meeting, could possibly have justified termination for serious and wilful misconduct.

[36] It was claimed by the appellant in the proceedings below that the reason he did not contact the respondent until the following Monday was that he did not have the mobile telephone number for Mr Abraham, the Operations Manager for the respondent.

[37] Commissioner Abey found the evidence "not plausible given that he left a message on Mr Abraham's message service on Monday 27 May."7

[38] Whilst some time was spent discussing the mobile telephone number and whether or not the appellant had that number and whether the message service number and the mobile number were the same, it would seem to us that the issue is not whether the appellant had any particular mobile telephone number but the fact that he had the ability to make contact with the respondent but did not do so until some days later.

[39] The appellant was obviously in a position to make contact with an officer of the respondent and did so on the Monday following the scheduled meeting, accordingly it seems irrelevant to us whether the appellant was given an opportunity to testify that he did or did not have a contact number for the respondent as he obviously did and this was the finding of the Commissioner, not that he had Mr Abraham's number but that he had the ability to contact the respondent.

[40] The sworn evidence of the appellant in the proceedings below reveal that he also had a telephone number to contact Mr Barker, a supervisor for the respondent, and would contact him on a Sunday night if he did not know what his work requirements were for the following Monday. However he did not contact Mr Barker on the Sunday prior to the Monday when he left a telephone message for Mr Abrahams.

[41] The appellant argued that it was a part of the contract of employment and rehabilitation program that the respondent provide transport to and from work on a daily basis. Commissioner Abey however discounted that item in the Return to Work Guidelines finding that it was "not a fundamental component of the program and had not been rigorously applied in the past." 8

[42] Commissioner Abey also found that the Return to Work Guidelines were not a factor relied upon by the applicant in the proceedings below in refusing to take his own vehicle to the work location. The fact that the appellant did use his own vehicle on occasions was not disputed albeit the proposal in the Return to Work Guidelines.

[43] The appellant relied on comments made by the respondent in respect to time limits for the lodging of a claim alleging unfair dismissal claiming that the "telling of an employee who has abandoned his employment that there were strict time limits to take legal action can only be interpreted as implying that the employer believed that it was terminating the employment...It is totally inconsistent with a belief that the employee had abandoned his employment."9 This was not a ground of appeal but we think it is of little or no relevance in any case, we do not see anything untoward about an employee being informed of his or her rights, we attach no inference of guilt to such information being provided.

[44] The appellant claimed that the Commissioner had given insufficient weight to the appellant's financial circumstances arguing that his circumstances were such that he could not afford to abandon his employment. The Commissioner makes no finding about the appellant's financial circumstances and we consider the issue not relevant to his consideration.

[45] We have considered the submissions and the grounds of appeal and are satisfied that the findings of the Commissioner were open to him. We detect no error on his part and are of the view that he has applied the correct and relevant weight to matters on which he relied to make his determination.

[46] In all the circumstances it is our view that his conclusions are reasonable and just in light of the evidence and submissions before him in the matter below.

[47] We dismiss all grounds of appeal and endorse the decision of Commissioner Abey.

 

P L Leary
PRESIDENT

Appearances:
Mr C J Gunson of Phillips Taglieri, Barristers and Solicitors for Mr A Sharam
Mr A J Munro of Durkin and Associates for Blue Tier Logging Pty Ltd

Date and place of hearing:
2003
February 5
Hobart

1 Transcript PN129
2 Transcript PN26
3 Original decision para 61
4 Transcript PN39
5 Transcript PN44
6 Transcript PN46
7 Original decision para 77
8 Original decision para 64
9 Transcript PN69