T6701
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Raymond John Hanson and Cosgrove Park Bowls Club Inc.
Appeal - decision by Commissioner P A Imlach on 19 December 1996 in matter T6528 of 1996 - appeal dismissed - decision confirmed REASONS FOR DECISION The appellant in these proceedings, Mr R J Hanson, is a former employee of the respondent Cosgrove Park Bowls Club Inc. The Club employed Mr Hanson on a full-time basis, from 9 April 1996 until 13 September 1996, to perform duties including "greenkeeping, counting and balancing of till and ticket machine monies, ordering of liquor, and cleaning of bar area ready for opening".1 For all of his period of employment Mr Hanson was also a member of the Cosgrove Park Bowls Club. About mid-1996 Mr Hanson became involved in "heated exchanges" with two other Club members, as a result of which those members made complaints to the managing Committee about Mr Hanson's conduct. At a meeting of 28 July 1996 the Committee suspended Mr Hanson's membership of the Club for a period of 20 weeks, a decision subsequently confirmed by a Special General Meeting convened on 8 September to hear Mr Hanson's appeal. Following his initial suspension, the Club Secretary informed Mr Hanson in writing that, among other things, "should the suspension stand you will continue to have full access to Club facilities in the course of fulfilling your work commitments".2 That advice was later reiterated by the Club President (Mr P Culley) in a letter sent to Mr Hanson following the Special General Meeting.3 Towards the end of August however, before the Club had heard his appeal, Mr Hanson evidently informed the Committee that he would no longer maintain the verges of the green, nor would he continue to perform other tasks such as painting the bench seats.4 The Committee subsequently replied to Mr Hanson after the Special General Meeting had confirmed his suspension, advising him that "we consider you in serious breach of contract if you do not maintain the verges and your employment may be terminated for disobedience if they are not maintained. Please consider this as an official warning".5 The Committee also told Mr Hanson that his "employment and suspension from membership are two entirely separate matters" and assured him, once again, that he would have full access to Club facilities for the purpose of fulfilling his work commitments. Immediately following confirmation of his membership suspension, on Monday 9 September, Mr Hanson attended work and informed the President that he believed his membership suspension prevented him from being on Club premises. Mr Hanson told Mr Culley that his belief rested on advice given him by the Secretary of the Northern Tasmanian Bowls Association (NTBA). The President said, in reply, that he would need 24 hours to clear the matter with the NTBA. On the Monday evening Mr Hanson said the NTBA Secretary informed him by telephone that he (Hanson) was not allowed on the Club's premises during his period of suspension and that, if he wished to go onto the green to do his job, he would need clearance to another bowls club. The following day, Tuesday 10 September, Mr Hanson went to work at 8.00am but, not finding Mr Culley in attendance, left his clearance application in the mail box, and returned home about 8.45am. At midday Mr Hanson spoke to Mr Culley by telephone, but that discussion did not resolve the questions arising from NTBA's advice. On Wednesday 11 September, Mr Hanson said that at 11.00am he received a visit at home from the President, who was accompanied by the Club Treasurer (Mr R Cleaver). Mr Hanson said the President gave him a letter,6 the contents of which Mr Culley wished to discuss. However, because Mr Hanson refused to enter into any discussions in the absence of witnesses, the parties arranged to meet later the same day, at 4.00pm, at the Club's premises. Prior to the meeting, Mr Hanson telephoned the NTBA to confirm the advice given him the previous day. On this occasion he spoke to the NTBA President (the Secretary being out of the State). The outcome of what appears to have been a lengthy discussion was, in brief, that Mr Hanson should talk to a solicitor. The meeting with Messrs Culley and Cleaver took place as arranged. According to Mr Hanson, Mr Culley wanted to know if he (Hanson) would be turning up for work the next day (Thursday 12 September). Mr Hanson said that he would not attend work until he had spoken with his solicitor. The President's response, according to Mr Hanson, was to the effect that the Club would regard any failure on his part to report to work on the nominated day as constituting an abandonment of his contract of employment. Mr Hanson consulted his solicitor at 12.00 noon on Thursday 12 September. He did not go to work that morning. After being advised by his solicitor to return to work, Mr Hanson went home and tried to ring the President to inform him of this fact. Mr Culley was not available, but Mr Hanson was able to speak to the Greens Supervisor (Mr R Parish), who said he would notify the President. Thereafter, because it was a wet afternoon, Mr Hanson (after a brief visit to the Club) remained at home making up a frame for the greens roller - working at home being something that he often did, he said, because he owned welding and grinding facilities not possessed by the Club. Mr Hanson reported for work at 8.00am on Friday 13 September and went about performing his usual range of duties. Later that morning Mr Culley, accompanied by Mr Cleaver, attended the Club premises and gave Mr Hanson a letter informing him that the Club regarded his contract of employment as terminated on the following grounds:7
On 24 September Mr Hanson applied to the President of this Commission, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing in respect of an industrial dispute regarding "whether my dismissal or purported dismissal from employment on 13 September 1996 was fair, just and in accordance with law ..." Mr Hanson also sought reinstatement to his former position of greenkeeper. Commissioner P A Imlach, to whom the President referred the matter, heard the parties and, after finding that Mr Hanson did abandon his employment, determined that he was not prepared to "interfere with the Club's decision".8 It is from this decision that Mr Hanson now appeals. In the appeal proceedings before us Mr Hanson represented himself and Mr A Cameron of the Tasmanian Chamber of Commerce and Industry Limited appeared for the Cosgrove Park Bowls Club Inc. In substance, Mr Hanson asks us to quash Commissioner Imlach's Order and reinstate him to his former position or, failing that, to award him compensation to the value of the unexpired portion of his fixed term contract of employment. Because the grounds of appeal are extensive, it is convenient to deal with them by reference to the issues that they raise. In resolving the issues put to us we apply the well known principles laid down in House v The King (1936) 55 CLR 499, 504-505 per Dixon, Evatt and McTiernan JJ:
Abandonment of Employment: Appeal grounds 1 and 2 assert that Commissioner Imlach was wrong in law and wrong in fact in finding that Mr Hanson abandoned his employment. Before us, Mr Hanson conceded that he did not report for work on the morning of Thursday 12 September because he wanted to make arrangements to see his solicitor. The following evidence of Mr Cleaver, he said, shows that it was reasonable for him (Mr Hanson) to so act:9
Mr Hanson submitted that Commissioner Imlach's decision makes no reference to Mr Cleaver's evidence on this point. In the circumstances, he implied, the Commissioner was wrong to find that he (Mr Hanson) had abandoned his employment on the morning of Thursday 12 September. As to the afternoon of that day, Mr Hanson continued, Commissioner Imlach was wrong to suggest that his absence from work could not be condoned. To the contrary, Mr Hanson argued, he went back to work as soon as he was told to do so by his solicitor. Mr Hanson said he tried to tell Mr Culley of the solicitor's advice but, the President not being available, he told the Greens Supervisor, Mr Parish, instead. Then, because it was a wet afternoon, he worked at home welding a roller frame. He pursued this maintenance activity, he said, after first going to the Club premises to obtain appropriate measurements for the frame. Mr Cameron, replying, said that concerning the meaning of "abandonment of work", Commissioner Imlach had before him a summary of W and R Worthly & Son Pty Limited (1969) AILR 301 in which it was held that the action of a bus driver in refusing to drive a bus constituted abandonment of employment.10 In the present case, Mr Cameron submitted, Mr Hanson was advised in writing that if he did not appear for work on Thursday 12 September he would be treated as having abandoned his employment because he had also been absent on the preceding Tuesday and Wednesday. Mr Cameron contended that, like the bus driver who refused to do his duties, Mr Hanson did not turn up for work and, even though he had received a prior warning in front of independent witnesses who were present at his request, he still refused to attend work. As to working at home, Mr Cameron said, there is no evidence, other than Mr Hanson's word, that he was at home welding the roller frame. In any event, Mr Cameron submitted, notwithstanding the instructions given to Mr Hanson to appear for work on the Thursday morning, he did not do so. Mr Cameron contended that it is not for an employee to choose his hours and when and where he will turn up for work. Regarding Mr Hanson's statement that he told Mr Parish he would be returning to work on the Thursday afternoon, Mr Cameron said this conflicts with the evidence of the President (Mr Culley) who said that the message he received was that Mr Hanson would be "returning to work tomorrow (Friday)".11 Commissioner Imlach, Mr Cameron said, in his Reasons for Decision, had the following to say about Mr Hanson's absences from work:
The Commissioner, Mr Cameron continued, also acknowledged his awareness of Mr Hanson's assertion that he never intended to abandon his employment.12 Concerning Mr Hanson's reliance upon what he believed to be reasonable conduct in the circumstances, Mr Cameron submitted that the Commissioner had before him13 the High Court case of Adami v Maison de Luxe Ltd. (1924) 35 CLR 143 which concerned a hall manager who was summarily dismissed because he refused to work on a Saturday afternoon in the honest, but mistaken belief that his contract did not require him to do so. In holding that the company was justified in dismissing the employee Isaacs ACJ stated that:14
Mr Cameron submitted the evidence is that Mr Hanson missed work despite three written notices from the Club and that, in the context of Adami v Maison de Luxe, he refused to turn up for work even in the face of a specific request to do so. The circumstances before Commissioner Imlach, Mr Cameron contended, show that Mr Hanson had no reason not to attend for work and, in the absence of any evidence to the contrary that he was sick or incapable of attending work, he had in the employer's opinion abandoned his employment, which the Commissioner also found to be the case. Of the specific points raised by Mr Hanson on appeal we observe that Commissioner Imlach, in his decision, dismisses much of the evidence of witness Cleaver on the grounds of ambiguity.15 However, that witness's concession concerning the reasonableness of Mr Hanson's actions in not turning up for work on the morning of Thursday 12 September was, in substance, the same as the evidence given by witness Culley, which the Commissioner dealt with and dismissed.16 Clearly, in our view, Commissioner Imlach considered the point of witness Cleaver's evidence, even though he did not refer specifically, in this context, to that witness. Concerning Mr Hanson's non-attendance at work on the Thursday afternoon, which we note is not the essential focus of Commissioner Imlach's finding, we see no reason to doubt the truthfulness of Mr Hanson's submission that he worked for the Club, but from home. To the extent of its relevance, however, we think Mr Hanson's explanation is beside the point. As Mr Cameron pointed out it was not open to Mr Hanson to choose when and where he would turn up for work. Mr Hanson knew the consequences of not reporting for work on the Thursday morning but, as Commissioner Imlach observes in his decision, "it was unreasonable for Mr Hanson ... to put his 'bowling career' before his employment"17 and that "Mr Hanson did not request permission to be absent from work at any time - he seems to have acted unilaterally from start to finish".18 The Commissioner's statements, we believe, accurately embody the very essence of this whole dispute: that the Club (again in the Commissioner's words) "had every right to require Mr Hanson to be at work".19 In this sense we agree with witness Cleaver that "Mr Hanson should have been at the bowls club fulfilling his duties, not elsewhere".20 While Mr Hanson, in his submissions to us on grounds 1 and 2 of his appeal did not go to questions of law, Mr Cameron took us to the case law that was before Commissioner Imlach. We accept that the Commissioner did not refer to any case law in his decision. However, as we read his decision, there is nothing in his finding that Mr Hanson abandoned his employment, that is inconsistent with the case law to which he was referred. Having considered the parties' submissions we are of the opinion that, in finding that Mr Hanson did abandon his employment, Commissioner Imlach did not act on any wrong principle, did not consider extraneous or irrelevant material, did not mistake the facts and did not fail to take into account all the relevant considerations. For these reasons we believe the Commissioner's finding was reasonably open to him in all the circumstances, both on the facts and as a matter of law. Accordingly, we dismiss appeal grounds 1 and 2. Employee's Conduct: Item 3 of the grounds of appeal asserts that Commissioner Imlach was wrong in law and in fact by implicitly finding that Mr Hanson's conduct justified termination of his employment. Mr Hanson submitted, in effect, that his actions did not constitute bad conduct but simply reflected efforts on his part to obtain guidance in resolving the conflicting advice given him by the Club on the one hand and by the NTBA on the other. Mr Culley in his evidence, Mr Hanson submitted, acknowledged that, on Tuesday 10 September, there was conflicting information coming from the NTBA.21 Mr Hanson said that he was in the same position as the Club: that is, endeavouring to obtain advice on whether he could go onto the green as an employee during the period of his suspension as a member. In the circumstances, Mr Hanson inferred, the Commissioner was wrong in implying that his conduct justified termination. Mr Cameron, for his part, submitted that the employee's conduct did justify termination, not only by way of abandonment of employment but because, in the alternative that the Club also put to Commissioner Imlach,22 Mr Hanson's behaviour constituted wilful disobedience of a lawful command. In support of his contentions Mr Cameron, before both Commissioner Imlach and us, relied on Consolidated Press Ltd v Thompson (1952) 52 SRNSW 75 and Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698. The basis of those cases, Mr Cameron submitted, is that an unjustifiable refusal to work for the employer indicates an employee's intention to repudiate the particular contract of employment. Mr Cameron contended that by refusing to attend for work as directed Mr Hanson repudiated his contract of employment, a repudiation accepted by the employer, who then had the option of either terminating the contract or allowing the arrangement to remain on foot. In the circumstances, Mr Cameron submitted, the Club took the first option - it accepted the repudiation and terminated Mr Hanson's contract of employment. The likelihood of such an outcome, Mr Cameron argued, was made clear to Mr Hanson by the Club President at the meeting of Wednesday 11 September 1996. Concerning the apparently conflicting advice given to the Club and Mr Hanson by the NTBA, Mr Cameron said the evidence before Commissioner Imlach established that the NTBA's sphere of interest concerned "just the bowling aspects"23 and is "purely to do with the greens more than anything"24. The organisation, Mr Cameron submitted, clearly had no authority in the matter of the Club's employment contract with Mr Hanson. All these matters were before Commissioner Imlach, Mr Cameron said, who acknowledged in his decision that "there was great confusion" to which both Mr Hanson and the Club's officers made a contribution.25 After reviewing the evidence and the law it seems to us that Mr Hanson's explanation that his actions did not flow from bad conduct, but arose only because of his desire to clarify conflicting advice, relies more on rationalisation after the event than on the evidence. The evidence, as Commissioner Imlach saw it, led him to observe (as we note earlier)26 that the Club had every right to require Mr Hanson to be at work; that it was unreasonable for Mr Hanson to put his bowling career before his employment; and that Mr Hanson did not at any time request permission of his employer to be absent from work. We agree with Commissioner Imlach. The reliance that Mr Hanson placed on his need to resolve the conflict seemingly thrown up by the NTBA advice does not, in our view, justify his refusal to attend work as directed. In short, Mr Hanson should not have put his bowling career before his employment because, as the evidence shows, the NTBA's interest did not extend to the contract of employment between Mr Hanson and the Club. In the circumstances, both on the facts and at law, Mr Hanson's refusal to attend work as directed without reasonable cause amounted to repudiation of his contract of employment thereby justifying, at the employer's option, his termination. For the above reasons we believe that Commissioner Imlach was not wrong, either in law or on the facts, in implicitly finding that Mr Hanson's conduct justified the Club's termination of his employment. Accordingly, we dismiss appeal ground 3. Evidence of Witness Culley: Appeal ground 4, in brief, asserts that Commissioner Imlach was in error in refusing to accept and give weight to the evidence of witness Culley (the Club President) as to what was reasonable conduct by the employee in the circumstances. In appeal ground 8 Mr Hanson further asserts that the Commissioner erred in that he failed to give any weight to the evidence of witness Culley that (i) his (Mr Hanson's) failure to attend work on the Thursday morning was reasonable and (ii) there was no ground for terminating his contract of employment. The evidence of witness Culley, Mr Hanson said, shows that he admitted to the presence of conflicting advice;27 agreed that the Club relied on, and proceeded on the basis of, the advice that best suited it even though the NTBA had no control over Mr Hanson's employment by the Club;28 agreed that Mr Hanson never indicated that he intended to deliberately ignore the Club's legitimate direction to return to work;29 agreed that it was reasonable for Mr Hanson to see a lawyer for advice;30 and, finally, agreed that in all the circumstances, having conceded that Mr Hanson's absence on the Thursday morning was reasonable, the ground for terminating his (Mr Hanson's) employment had disappeared.31 Mr Hanson submitted that Commissioner Imlach was in error in that he appeared to have paid no heed at all to Mr Culley's evidence concerning the reasonableness, in all the circumstances, of his (Mr Hanson's) conduct. In particular, Mr Hanson said, the Commissioner was in error in not giving weight to the evidence of witness Culley that it was reasonable for him not to attend work on the Thursday morning and that, in the circumstances, there was no ground for his termination. Mr Cameron, in reply, submitted that Commissioner Imlach, in his decision, specifically referred to the evidence of witness Culley regarding the reasonableness of Mr Hanson's actions.32 However, he continued, it was not for Mr Culley, at a hearing some two months after the termination, to pass judgement on the matter. Mr Cameron said that while Mr Culley, in the sense of looking back, might agree that it was reasonable for Mr Hanson to act as he did, that was not the case at the time the events occurred. Indeed, Mr Cameron submitted, Mr Culley says on a number of occasions that he thought he was doing the right thing. In support of this assertion Mr Cameron took us to the evidence of Mr Culley where he says, for example, that he did not believe it was unreasonable to tell Mr Hanson that if he did not turn up for work on the Thursday morning, he would be regarded as abandoning his employment;33 that "we went with our belief that we were going the right way about things";34 that at the time he believed "Mr Hanson would have returned to work after he had applied for his transfer";35 that he believed "the Committee were going about things the right way and that the NTBA didn't have any say in the matter, really";36 that he did not believe Mr Hanson had a reasonable belief that he could not enter the Club's premises for work purposes;37 and that, at the time, he felt that the Club's instruction to Mr Hanson to turn up for work on the Thursday morning was reasonable.38 Mr Cameron submitted that the record of proceedings before Commissioner Imlach shows that witness Culley made certain comments and admissions under cross-examination that he later changed under re-examination. The Commissioner, he said, in his decision, adverts to the confusion present at the time and to witness Culley's evidence on cross-examination, thereby showing that he was fully aware of and gave appropriate weight to Mr Culley's evidence. We have already noted that Commissioner Imlach did in fact deal with the evidence of witness Culley concerning the reasonableness of Mr Hanson's conduct in not attending for work on the Thursday morning.39 More specifically, in his Reasons for Decision, the Commissioner observes that:40
As to the weight which might properly be given to witness Culley's evidence, we agree with and accept Mr Cameron's submission that the appropriate focus for testing the parties' beliefs is the time at which the relevant events occurred. In the circumstances, the concessions of reasonableness made by Mr Culley in cross-examination, no doubt with the benefit of hindsight, do not in our opinion act to entirely negate the evidence given by Mr Culley that, at the time the events occurred, "we went with our belief that we were going the right way about things" and that the matter was nothing to do with the NTBA.41 In those circumstances it fell to Commissioner Imlach, who had the advantage of hearing the witness at first hand, to make a judgement as to the weight that he should give to that evidence. In his considerations the Commissioner effectively chose to dismiss the reasonableness evidence of witness Culley in favour of preferring the evidence of what the witness said he believed at the time. In our view that course was clearly open to him. For these reasons we dismiss appeal grounds 4 and 8. Evidence of Witness Cleaver: In appeal ground 9 Mr Hanson asserts that Commissioner Imlach erred in failing to advert to or give any weight to the evidence of witness Cleaver (the Club Treasurer) concerning that person's opinion that, because Mr Hanson was seeking advice from his solicitor, it was reasonable that he should not turn up for work on the Thursday morning in question. In support of this contention Mr Hanson referred us to the evidence of witness Cleaver recorded earlier herein.42 Mr Hanson also told us he believed Mr Cleaver said in evidence that he did not see him (Mr Hanson) at the Club on Thursday afternoon. However, Mr Hanson said, that does not mean that he was not at work. In this context, Mr Hanson reminded us that he did attend the Club premises that afternoon for the purpose of obtaining certain measurements for the roller frame he was making up at home. Witness Cleaver, like Witness Culley, Mr Cameron submitted, made certain admissions under cross-examination but later changed those statements in re-examination. On the question of the reasonableness of Mr Hanson's actions, Mr Cameron took us to Mr Cleaver's evidence that, as to non-attendance at work on the Thursday, "he [Mr Hanson] could have made some effort to come in the morning or in the afternoon, but he did neither";43 that, as to attending work on the Thursday morning, "he should have been there ... in the morning, because his appointment wasn't until 12 o'clock, but he had from 8 o'clock till, say, 10 - even if it took him two hours to get to his appointment";44 that, as to working at home on the Thursday afternoon, "as far as I'm concerned Mr Hanson should have been at the bowls club fulfilling his duties, not elsewhere";45 and, finally, as to the NTBA advice, "we assured Mr Hanson that he could come to work any day and it wasn't related to the suspension".46 Mr Cameron submitted that, on the evidence, Mr Hanson's assertions in appeal ground 9 are unsubstantiated because the Commissioner, in his decision, took full account of the evidence of Mr Cleaver as to what was reasonable on the morning of Thursday 12 September 1996. We record earlier our view that "Commissioner Imlach considered the point of witness Cleaver's evidence, even though he did not refer specifically [in the context of the reasonableness of Mr Hanson's actions] to that witness".47 As to the question of weight, it fell to Commissioner Imlach, who had the advantage of hearing the witness at first hand, to make a judgement as to the emphasis that he should put on that evidence. In his considerations the Commissioner effectively chose to dismiss the reasonableness evidence of witness Cleaver in favour of preferring the evidence of what the witness said he believed at the time, i.e. that "Mr Hanson should have been at the bowls club fulfilling his duties, not elsewhere".48 In our view that course was clearly open to him. For these reasons we dismiss appeal ground 9. Reasonableness of Conduct: In his fifth ground of appeal Mr Hanson asserts that Commissioner Imlach failed to assess all the evidence concerning the parties' conduct and to make specific findings as to what was reasonable or unreasonable. Mr Hanson submitted that while Comissioner Imlach outlined in his Reasons for Decision the basic facts of the matter, he failed to examine and weigh the evidence for the purpose of determining, in all the circumstances, what was reasonable conduct and what was unreasonable conduct in relation to each of the parties concerned. In support of this contention Mr Hanson relied upon the evidence of witness Culley where he agreed that "it was reasonable for him [Mr Hanson] to go and see a lawyer at midday and get it fixed rather than risk being in breach [of NTBA rules] turning up for a couple of hours work in the morning".49 Mr Hanson contended, in effect, that Commissioner Imlach did not take this evidence into account in his decision. Contrary to Mr Hanson's assertion, Mr Cameron argued, Commissioner Imlach did assess the evidence as to the parties' conduct, in respect of which he found that "it was unreasonable for Mr Hanson, in the industrial context, to put his 'bowling career' before his employment".50 Furthermore, Mr Cameron continued, the Commissioner was critical of witness Cleaver's evidence because of its ambiguity in relation to that given by Mr Hanson concerning the latter's absence from work on the Thursday morning. Finally, he said, Commissioner Imlach observed that witness Culley's statement that it was reasonable for Mr Hanson to stay away from work on the basis of the NTBA advice was, in the circumstances, "hardly the thing for the Club President to think and say".51 Given that, in his Reasons for Decision, Commissioner Imlach observes that it was unreasonable for Mr Hanson to "put his 'bowling career' before his employment"; that he thought witness Cleaver's evidence was ambiguous; and that witness Culley's "reasonableness" evidence, and by inference the similar evidence of witness Cleaver, was inappropriate in the circumstances, satisfy us that the Commissioner did in fact and by implication weigh and make findings regarding the evidence of the reasonableness of Mr Hanson's conduct. In these circumstances we dismiss appeal ground 5. International Labour Organisation Convention: Mr Hanson, in items 6 and 7 of his appeal grounds, asserts that Commissioner Imlach erred in that, concerning Section 31(1A) of the Act, he failed to (i) advert to or consider the International Labour Organisation's Convention concerning Termination of Employment at the Initiative of the Employer and (ii) make a specific finding that there was a valid reason for Mr Hanson's termination. Mr Hanson submitted that there is nothing in Commissioner Imlach's Reasons for Decision that shows he took into account the standards of general application contained in Part II of the Convention, nor is there anywhere in that decision a finding that there was a valid reason for his (Mr Hanson's) termination. In reply, Mr Cameron contended that the applicant put nothing to Commissioner Imlach concerning Section 31(1A) of the Act and the International Labour Organisation Convention. Indeed, he said, the only mention of the Convention came from the employer who informed the Commissioner that none of the provisions of the Convention had been breached.52 In any event, Mr Cameron continued, the Convention only applies to termination of an employee at the initiative of the employer. The Club's submission to Commissioner Imlach, he said, was that the employee repudiated the contract of employment by refusing to attend work as instructed and, in so acting, abandoned his employment. In the circumstances, there was no termination at the employer's initiative, since all the Club did was accept Mr Hanson's repudiation of his contract of employment. Mr Cameron submitted that the conclusion flowing from those actions, in terms of the Convention, is that the termination, not being at the initiative of the employer, required no valid reason of the employer. In the alternative, Mr Cameron contended, if the Club's acceptance of Mr Hanson's repudiation of his contract of employment amounted to a termination at the employer's initiative, then Mr Hanson's words and behaviour, having indicated by his refusal to attend work that he would not be bound by the contract, provides the necessary valid reason. Section 31(1A) of the Act provides that:
Any failure on the part of a Commissioner, in a relevant decision, to comply with the requirements of Section 31(1A) would be, we think, fatal to the decision. This would be so, we think, even in circumstances where the parties themselves may not deal with the matter in their submissions, because it seems to us that the tribunal member's duty is absolute. In the present case, however, Commissioner Imlach appears to have accepted the employer's submission that, having effectively abandoned his employment, the termination of employment was at Mr Hanson's initiative rather than at the employer's initiative and, consequently, the Convention did not fall for consideration. We draw this conclusion from the fact that, having found that "Mr Hanson did abandon his employment",53 the Commissioner evidently formed the view, since he did not discuss the Convention, that there was no need for him, in the circumstances, to take the matter any further. In our opinion the evidence before Commissioner Imlach was sufficient to justify the approach that he appears to have taken. In this context we note that the Club's letter of 13 September 1996 to Mr Hanson, informing him that the Club regarded his employment as terminated, states that (the underlining is ours):54
Later on, in the same letter, the Club says "We regret that you have chosen to cease your employment with the club ..." Nowhere, however, does the Club purport to say that it is terminating Mr Hanson's employment. It seems to us, on the evidence, that the Club's letter is, as Mr Cameron contended, not a letter of termination but merely a letter of acceptance of Mr Hanson's repudiation of his contract of employment. In those circumstances, while we think it is preferable for the decisions of tribunal members to clearly indicate where necessary compliance with statutory requirements, it was open to the Commissioner on the evidence in this case to take the view that, in the circumstances, the Convention had no application. For these reasons we do not believe Commissioner Imlach erred in failing to advert to the Convention or that he erred in not making a specific finding that there was a valid reason for Mr Hanson's termination. We accordingly dismiss appeal grounds 6 and 7. Contract of Employment: Mr Hanson's tenth ground of appeal asserts that Commissioner Imlach was in error in failing to ascertain the terms and conditions of his contract of employment and, in particular, whether the contract was one for a fixed term of 12 months from 22 April 1996. Mr Hanson submitted that his letter of appointment of 9 April 1996, which constituted his terms and conditions of employment and which was before Commissioner Imlach, expressly provided that the Club agreed to employ him for a period of 12 months, starting from 22 April 1996. Mr Hanson submitted that even though witnesses Culley and Cleaver both conceded that it was reasonable, in the circumstances, for him to be absent on the Thursday morning, they still terminated his employment and his contract. Mr Hanson contended that Commissioner Imlach erred because he failed to acknowledge the presence of a fixed term contract of employment in his (Mr Hanson's) favour. In reply, Mr Cameron contended that the Club submitted to Commissioner Imlach that, in the employer's opinion, Mr Hanson was employed under the Licensed Clubs Award. In the circumstances, he continued, any reference to a fixed term contract was not a contract for a fixed term, but merely compliance with the award concerning the period of Mr Hanson's appointment. In support of this contention Mr Cameron took us to his submissions to Commissioner Imlach, at first instance,55 in which he asserted that the Club is bound by the Licensed Clubs Award; that the award contains provision for the classification of Greenkeeper; that the letter of appointment of 9 April 1996 refers to and incorporates the award for purposes of conditions other than those specified in the letter; that Clause 39 of the Award requires an employer to "inform the employee as to the term of his or her engagement including whether full-time, part-time or a casual employee", all of which details appear in Mr Hanson's letter of appointment; and that Clause 39 also provides for the termination of employment "by the giving of one week's notice on either side". But, Mr Cameron contended, even if the contract was one for a fixed term, nothing fell from this for consideration by Commissioner Imlach because, having found, for reasons advanced in relation to appeal grounds 1 and 2, that Mr Hanson had abandoned his employment, termination occurred at the initiative of the employee. The Club, Mr Cameron said, did not terminate the contract of employment but merely accepted the fact that Mr Hanson, by his actions, did not wish to continue to be bound by it. We have already indicated that we are prepared to uphold Commissioner Imlach's decisions that Mr Hanson repudiated his contract employment and, in so doing, abandoned his employment.56 The outcome of that action, which we have also discussed, was that termination effectively occurred at the employee's initiative rather than that of the employer.57 In the circumstances, we accept Mr Cameron's submission that there was nothing before the Commissioner that required him to identify the terms and conditions of Mr Hanson's contract of employment. For this reason we dismiss appeal ground 10. Compensation in Lieu of Reinstatement: Mr Hanson's final ground of appeal takes the following form:
Mr Hanson's submission on this issue, in effect, was that in the event that his claim for reinstatement should fail, as it did, Commissioner Imlach should have awarded the unpaid wages, as claimed, on the basis of the contract being one for a fixed term. Mr Cameron argued that because Commissioner Imlach's decision was that Mr Hanson had abandoned his employment, reinstatement was not an option and, consequently, there was no alternative remedy to reinstatement that he needed to look at. In short, he continued, there was no finding by Commissioner Imlach that reinstatement was impractical - hence, there was no need for him to look at making any compensatory payments to Mr Hanson. Because of the views we have formed about Mr Hanson's abandonment of his employment and that, as a consequence, termination effectively occurred at the initiative of the employee rather than the employer, we agree with Mr Cameron that Commissioner Imlach, having decided as he did, had no need to consider the question of making compensatory payments to Mr Hanson. Since we are also of the same view as the Commissioner, we dismiss this ground of appeal on the basis that it raises no issue for our consideration. For the reasons discussed above we dismiss all the grounds of appeal as notified in the Notice of Appeal and, in dismissing the appeal, confirm the decision of Commissioner Imlach.
F D Westwood Appearances: Date and Place of Hearing: 1 Written agreement of 9 April 1996. |