Abandoning the adverse action

Many businesses struggle with what is unfair, unlawful, constructive and summary dismissal. The one common thread is that it is termination or deemed termination by the employer. Termination or deemed termination by the employer, in some circumstances, may also be considered an adverse action against an employee.

However, this becomes problematic when abandonment of employment is thrown into the mix by an employer and, it seems in a recent case, the unions were stuck with the old IR world (ie. abandonment) and were deprived of the main prize in the new IR world – what is known as the General Protections provisions, particularly in this case, a potent adverse action claim.

Abandonment of employment occurs where an employee makes it clear they no longer wish to work. A classic example is the case of Maan v Swift Australia (Southern) Pty Ltd [2010] FMCA 136, where a slaughterman signed off for the day noting he had ended the shift but in fact left several hours before.

We commonly are asked to advise upon abandonment of employment where: an employee fails to report to work for several days, is not contactable and has no lawful excuse for his or her absence.

An employer recently argued abandonment in the Liquor, Hospitality and Miscellaneous Workers Union v Video City Pty Ltd [2010] FMCA 692 (September 9, 2010). This case is perhaps one of the more comic workplace decisions since Fair Work Australia’s inception. The employer’s action in arguing abandonment clearly sidetracked the union’s proper investigation and analysis of its true cause of action. The union only argued for accrued leave and notice; not constructive dismissal or unlawful termination.

The facts today would suggest a more obvious and dangerous cause of action against the employer. An employee of Video City made a complaint, relating to OHS concerns about an odour emitting from a neighbouring premises. On any version of the evidence, she was treated differently and unkindly when asserting a workplace right.

In the language of the old Act, the employee had made a lawful complaint. For the uninitiated, a workplace right under the Fair Work Act 2009 (Cth) includes ‘being able to initiate or participate in a process or proceedings under a workplace law or workplace instrument and being able to make a complaint or inquiry to a person or body relating to the employee’s employment’ (section 341 of the Fair Work Act 2009 (Cth)). The employee’s action that led to being treated poorly involved complaining about the odour and possibly arranging for an inspector from Workplace Standards to attend.

The relevant manager sent a memo to staff identifying the employee’s complaint and admonishing staff for calling the inspector. The strong hint was retribution and loss of jobs.

The employee felt unwell, told other staff members, went home, saw a doctor and subsequently resigned. The employer argued she abandoned her employment. The union argued, for the employee, that she had unpaid leave entitlements for her two week’s notice. No argument was raised about an unlawful termination based on illness or the complaint.

But what if the facts arose now? There could be a possible claim of adverse action. The employee spoke of having “a gutful”, was clearly treated adversely and the employer’s action led to her resignation. Although no claim of constructive dismissal or unlawful termination were pursued under the old Act – there appears strong grounds for such an argument.

There was no abandonment of employment here. On the employee’s evidence, accepted by the Federal Magistrate, she resigned after being treated adversely as a result of exercising a workplace right; had been bullied when ill; and treated rudely and offensively when demonstrably ill (supported by doctor’s evidence). Under section 545(2) of the Fair Work Act 2009 (Cth), the employee could have been entitled to compensation as a result of the adverse action. The union could have sought penalties.

Rather the union sought and received under the old Act:

• Wages for hours worked and unpaid= $341.00
• Notice in lieu = $1,178.00
• Super = $136.71
• Accrued annual leave = $1,351.71
• Interest = $265.32

Video City was lucky in this case. The claim of abandonment by Video City failed because a resignation is not abandonment. It is a lawful entitlement to resign and does not amount to an abandonment leading to the foregoing of notice. The union properly sought redress for the failure to pay notice; but could easily have pursued more vigorous claims.

But we will all be left wondering how a case so squarely in the “Adverse Action” basket would be run today and what would be the outcome.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.