[2016] FWC 6624
The attached document replaces the document previously issued with the above code on
17 October 2016.
Endnotes 21, 23, 24 and 25 have been corrected as follows:
21 [2008] AIRCFB 1088
….
23 [2008] AIRCFB 1088, paras [38] and [39]
24 [2008] AIRCFB 439
25 [2008] AIRCFB 439, from para [8]
Denise Jelfs
Associate to SENIOR DEPUTY PRESIDENT O’CALLAGHAN
18 October 2016
1
Fair Work Act
2009
s.394—Unfair dismissal
Boguslaw Bienias
v
Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia
(U2016/3008)
SENIOR DEPUTY PRESIDENT
O’CALLAGHAN
ADELAIDE, 17 OCTOBER 2016
Application for relief from unfair dismissal – abandonment of employment – absence from
work – Award deeming provisions – termination not at the initiative of the employer.
[1] On 22 June 2016 Mr Bienias lodged an application pursuant to s.394 of the Fair Work
Act 2009 (the FW Act) in which he alleged that he had been unfairly dismissed by Iplex
Pipelines Australia Pty Ltd T/A Iplex Pipelines Australia (Iplex).
[2] An extension of the time limit specified in s.394 of the FW Act, for the lodgement of
Mr Bienias’ application was granted by Deputy President Clancy on 3 August 2016.1
Mr Bienias’ application was not resolved through the conciliation process and was referred to
me for arbitration. It was the subject of a determinative conference, in Perth on 21 September
2016. On 30 August 2016 I issued a decision2 in which I granted permission for Iplex to be
represented by a lawyer. Mr Wade, of counsel subsequently represented Iplex. Mr Bienias
represented himself with assistance from his wife, Ms Gonciarz.
[3] I have set out the background to Mr Bienias’ application in the following terms.
[4] Mr Bienias worked for Iplex for some 32 years and was, from 1992, a Team Leader.
There is no dispute that his role required supervision of up to eight machine operators and the
over-sighting of quality assurance functions. Mr Bienias worked on a “four days on four days
off” roster system. There is also no dispute that Mr Bienias’ employment was covered by the
Manufacturing and Associated Industries Occupations Award 2010 (the Award).
[5] Mr Holmes was appointed as the Iplex Plant Manager in December 2015. From that
time Mr Bienias reported to Mr Holmes.
[6] Until June 2016, Mr Bienias’ wife was resident in Canada.
[7] Until 2015, there were no formal records of any performance or disciplinary matters
involving Mr Bienias.
[2016] FWC 6624 [Note: This decision and the associated order has been
quashed - refer to Full Bench decision dated 13 January 2017[[2017]
FWCFB 38]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb38.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb38.htm
[2016] FWC 6624
2
[8] On 2 June, 2015 Mr Bienias was given a written warning for failing to comply with
the required quality standards on 19 May 2015.
[9] On 21 December 2015 Mr Bienias was stood down from work following a positive
alcohol test reading at work. He was provided with a letter detailing the allegation that he had
breached the Iplex alcohol policy in this respect. On 18 January 2016, on his return from
leave, Mr Holmes advised Mr Bienias that he would be given a written warning. Mr Bienias
was given a written warning dated 19 January 2016 regarding this matter.
[10] Mr Bienias was absent from work on his rostered shifts on 19, 20, 21 and 22 January
2016. The parties disagree over the extent to which he notified Iplex of his absences in this
respect. On 28 January 2016 Mr Holmes met with Mr Bienias to discuss those absences.
Mr Bienias confirmed that he was not sick, but tired and jetlagged and sought to be allowed to
take that time as annual leave or long service leave. There is no dispute that Mr Holmes
instructed Mr Bienias to notify him of any further absences. Mr Bienias was absent from work
on 7 March 2016. He agreed that he did not notify Mr Holmes of that absence because it was
a public holiday. On 10 March 2016 Mr Bienias was given a written warning relating to his
absenteeism and failure to comply with notification requirements.
[11] On 19 April 2016 Mr Bienias participated in a management meeting where the advice
he provided to Mr Holmes about a quality assurance fault resulted in Mr Holmes advising that
this issue would be further investigated.
[12] Mr Bienias did not attend work on 2 and 3 May 2016. On 3 May 2016 he advised
Mr Fairhurst, the Interim Production Manager, that he could not come into work because he
was ill. Mr Bienias attended work on 4 May 2016 but was stood down with pay pending
investigation of this absence. Mr Bienias and Mr Holmes do not agree on the conduct of the
meeting where Mr Bienias was stood down.
[13] On 5 May 2016 Mr Bienias received a letter from Iplex detailing allegations which
included his absence on 2 and 3 May and went to the quality assurance issue identified on
19 April 2016. This letter provided for a meeting to be held on 10 May 2016 to enable
Mr Bienias to respond to these allegations. It confirmed that Mr Bienias could have a
representative with him or he could respond in writing.
[14] Mr Bienias attended the meeting on 10 May 2016 with a support person and Iplex had
three representatives present. Whilst the parties differ over the conduct of that meeting it
concluded on the basis that Mr Bienias’ responses would be considered and that there would
be a further meeting on the following day. It is common ground that Mr Bienias was
distressed in this meeting. In the meeting on 11 May 2016 Mr Bienias was again distressed.
The Iplex position is that he was advised that he would be issued with a final written warning
and would be placed on a performance improvement plan. Mr Bienias was given the rest of
that day off work but was advised that he was expected to attend work again on 12 and 13
May 2016.
[15] Mr Bienias advised that he attended at work on 12 May 2016 but that he did not
consider that he was able to work and asked the relief Team Leader, Mr Culver to replace him
before leaving work. Mr Bienias did not attend work at Iplex again. He has advised that “The
following days I stayed home in bed and was barely aware that phone rang or that I had to eat,
[2016] FWC 6624
3
take my medication of even care for my life. I was appalled and did not want to talk to
anyone”.
[16] Mr Holmes advised that a final written warning, prepared on 11 May 2016 was not
provided to Mr Bienias as a consequence of his failure to attend work on 12 and 13 May
2016. Mr Holmes advised that he telephoned Mr Bienias on 13 May 2016 and left a message
advising him that he required a medical certificate in support of his absence.
[17] Mr Bienias was next rostered to work on 18 May 2016. He did not attend work on that
day, or the following three rostered work days and did not notify Iplex of his absence. On 23
May 2016 Iplex arranged for a letter to be delivered to Mr Bienias. This letter requested that
Mr Bienias urgently contact Mr Holmes. Whilst the circumstances of the delivery of this letter
are disputed, there is no dispute that it was ultimately delivered to Mr Bienias. Mr Bienias
advises that, for reasons relating to his mental health, he did not become aware of this letter
until sometime in June.
[18] Iplex contacted the Western Australian Police on 26 May 2016 to ask them to conduct
a welfare check on Mr Bienias and was advised that the Police had been able to make contact
with him. On 30 May 2016 Iplex prepared and then couriered a letter to Mr Bienias in which
it confirmed the termination of his employment effective on 13 May 2016 on the basis that
Iplex considered that he had abandoned his employment. This letter provided for payment of
five weeks’ notice.
[19] Ms Lisowski is a friend of Mr Bienias’ and Ms Gonciaz. At Ms Gonciaz request,
following her inability to make contact with Mr Bienias, Ms Lisowski sought the assistance of
the Police to contact Mr Bienias. On 28 May 2016 the Police visited Mr Bienias at his home
and arranged for him to be taken to hospital. There was some disagreement over the nature of
the consequent assessment of Mr Bienias’ medical condition. Mr Bienias was discharged
from hospital on 30 May 2016.
[20] Ms Gonciaz returned to Australia on 11 June 2016. Her evidence was that, on her
return, she found the Iplex letters of 23 and 30 May 2016. Ms Gonciaz contacted Mr Holmes
on 13 June and met with him on 15 June. Medical certificates relating to Mr Bienias were
provided to Iplex. These certificates certified Mr Bienias as being unwell from 28 May 2016.
Ms Gonciaz requested that Iplex reverse its decision to terminate Mr Bienias’ employment.
On 20 June 2016 Iplex confirmed the dismissal decision.
The submissions
[21] Mr Bienias asserts that he was dismissed by Iplex and that his absences could not be
regarded as indicative of abandonment of employment. He asserts that the termination of his
employment occurred because of his temporary absence as a result of illness and that there
was no valid reason for this employment termination. Mr Bienias asserts that the warnings
and allegations put to him were framed in a manner which caused, and exacerbated his
distress and resulted in his absence from work, together with the need for him to be receiving
on-going medical treatment. Mr Bienias asserts that his 32 years’ service was not properly
taken into account by Iplex and that Iplex should reasonably have concluded from his
behaviour that he was unable to cope with normal work pressures and was stressed.
Mr Bienias asserts that he was treated in a different manner to other employees on his return
to work after he tested positive for alcohol at work in December 2015 and with respect to the
[2016] FWC 6624
4
production quality failing in April 2016. Mr Bienias asserts that Iplex should have developed
a performance improvement plan for him at an earlier time and should have provided that plan
to him before he stopped attending work. Further, he asserts that an inference should be drawn
to the extent that the disciplinary actions taken against him were intended to permit Iplex to
dismiss him as an alternative to making him redundant. In terms of the procedural aspects of
his dismissal, Mr Bienias asserts that he was not given an opportunity to respond to the
proposition that his employment could be terminated and was not advised of the reasons for
that dismissal until after it had taken effect. Mr Bienias asserts that, particularly given his
mental health, and taking into account his long service with Iplex, the termination of his
employment was harsh, unjust and unreasonable.
[22] The Iplex position is that, Mr Bienias was not dismissed at its initiative in accordance
with s.385 of the FW Act. Iplex assert that Mr Bienias was covered by the Award and clause
21 of that Award provided for an absence from work of 14 days to constitute a deeming of an
abandonment of employment. Iplex relies on various authorities in support of its position in
this regard.
[23] In the alternative, Iplex asserts that Mr Bienias’ repeated unexplained absences from
work, in the context of clause 21 of the Award represented a valid reason for the termination
of his employment. Iplex asserts that Mr Bienias was properly notified of the reason for the
termination of his employment and was given opportunities to advise of the reasons for his
absences. Iplex assert that Mr Bienias was treated fairly relative to other employees. Iplex
asserts that, notwithstanding Mr Bienias’ long employment history, his behaviour in the
context of disciplinary action since May 2015, further indicate that the termination of his
employment should not be considered to be harsh, unjust or unreasonable.
The Evidence
[24] Whilst I have considered all of the evidence before me, I have summarised the witness
evidence in the following terms.
[25] Mr Bienias’ evidence went to his employment history, including issues associated with
his failure to comply with sick leave notification requirements which had arisen under the
manager prior to Mr Holmes. He advised that the normal practice was to notify the team
leader’s office of a sick leave absence but acknowledged that, as of 28 January 2016,
Mr Holmes had instructed him to telephone him personally to advise if he was going to be
absent from work.3 His evidence went to his reaction to the warnings and letters of allegation
provided to him by Mr Holmes, such that he understood that “his job was on the line”.4
Notwithstanding the instruction to advise Mr Holmes of his absences, Mr Bienias was absent
on 7 March 2016 but did not advise Mr Holmes of that absence because he did not want to
disturb him on a public holiday. He advised that he was distressed and unable to function
normally during May 2016, but that he did not seek help and simply withdrew from any social
engagement, including work and his normal daily communication with his wife, who was in
Canada. He agreed that he had confirmed to Mr Holmes in a meeting on 18 January 2016 that
he had previously used the Iplex Employee Assistance Service (the EAP) and would probably
do so again.5 However, his evidence was that he did not utilise the EAP over this time despite
it being recommended to him. Following his further absences on 2 and 3 May 2016, Mr
Bienias was provided with a letter detailing the allegations made about his failure to properly
notify of those absences and report on the quality issue on 19 April 2016. He, together with
his support person, then met with Mr Holmes on 10 May 2016. Mr Holmes provided
[2016] FWC 6624
5
comprehensive notes of that meeting which Mr Bienias agreed were generally accurate.6 He
also confirmed that he had no explanation for his failure to notify of his absence in
accordance with the instructions given to him. Mr Bienias agreed that, at a follow-up meeting
on 11 May 2016, he was told that he would be given a final warning and that he would be
placed on a performance improvement plan. Mr Bienias was not required to attend work again
until 12 May 2016. He also agreed that, apart from a brief attendance at work on 12 May 2016
when he handed his keys to another employee, he did not again attend for work and was not
given either the final written warning, or the proposed performance improvement plan. Mr
Bienias advised that he did not advise Mr Holmes of his absence on 12 May 2016 because he
considered that his brief attendance at work obviated the need to do so.7 He advised that his
interest in life generally deteriorated over this time and that this explained his failure to check
his mail, and to respond to telephone calls and door knocks. His evidence was that he felt
bullied by the warning and disciplinary process.8 This evidence was in the following terms:
Mr Wade: You haven’t produced medical certificates Mr Bienias in respect of the
period 13 May to 27 May have you?
Mr Bienias: No
Mr Wade: In that period you missed a further two shifts, correct?
Mr Bienias: Yes
Mr Wade: I should say two series of shifts.
Mr Bienias: It was the 13th then 18, 19, 20, 21 then 26 and 27. The 28th I was taken to
hospital….. so it’s a shift and a half.
Mr Wade: So you missed two series of shifts.
Mr Bienias: 7 rostered days on.
Mr Wade: You didn’t in respect to any of those days contact Mr Holmes as you knew
you should do, correct?
Mr Bienias: No I didn’t contact, no.
Mr Wade: You never provided an explanation Mr Bienias for why you didn’t do that,
are you able to provide one now?
Mr Bienias: I was in such a state of mind that I just didn’t care. As I wrote in my
statement, I just thought I needed some more rest, I was devastated by all this. Four
months of warnings and being reminded every time that I was going to be jeopardising
my job every time, you know, I stopped caring.
Mr Wade: Mr Bienias, you accepted in all of those meetings with Mr Holmes that you
were at fault and in some of them you begged for forgiveness and you begged for a
further chance. …. and Mr Holmes gave you that chance.
Mr Bienias: I didn’t beg for forgiveness I asked for another chance.
[2016] FWC 6624
6
Mr Wade: And Mr Holmes afforded you that chance.
Mr Bienias: Yes.
Mr Wade: So Mr Bienias, I must put it to you, that knowing you had a final warning
you consciously decided not to do what Mr Holmes asked you to do, which was to call
him and explain your absence.
Mr Bienias: On my days off, I didn’t think that I had to call him, until I can to the
next rostered on …. but I was in such a state I stopped caring.
Mr Wade: Do you have any other explanation you want to give Mr Bienias as to why
you didn’t do what Mr Holmes asked you to do, which was to phone him?
Mr Bienias: Well as you can see from the diagnosis from the hospital I was in
depression. I don’t know, I can’t explain it.
Mr Wade: You were living your life Mr Bienais, you were eating you were no doubt
shopping ….
Mr Bienias: No I was not, I lost 10 kilos of weight.9
[26] Mr Bienias confirmed that he was rostered for work on 13, 18, 19, 20, 21, 26 and 27
May 2016 but did not advise or seek to advise, Mr Holmes or Iplex of his absence. Mr Bienias
advised that he did not check his letterbox between 12 and 30 May 2016 and that he was not
aware of the termination of his employment until advised of this by his wife on 11 June 2016.
He advised that he could not receive any telephone messages as his phone mailbox was full of
messages from his wife.
[27] Mr Bienias’ evidence about being admitted to hospital on 30 May 2016 was limited.
However, he was aware that he was told he was depressed. He was also aware that, on his
release from hospital on 30 May 2016, he was given a medical certificate. He did not seek to
then contact Iplex or provide that certificate to Iplex. On 1 June 2016 his evidence was that he
felt well enough to walk to his treating General Practitioner and that he asked for a further
Doctor’s Certificate, but that he did not provide this to Iplex until some days later. Mr Bienias
was unable to advise why he did not telephone Iplex at that time.10 His evidence was that he
remained under the care of his General Practitioner. He was unable to advise me of a
psychological health diagnosis that extended beyond the depression that affected him in May
2016. His evidence was that he remained medically certified as unfit for work until at least the
end of September 2016.
[28] Mr Bienias’ evidence was that he had not sought alternative work since the
termination of his employment because of his mental health.
[29] Ms Gonciaz’ evidence went to confirm her observations that Mr Bienias appeared to
be increasingly withdrawn and non-communicative from the end of 2015. She advised that he
sought to explain this on the basis that he was tired. His withdrawal then extended to reticence
to talk, and, by mid-May, the absence of any response to her phone calls from Canada.
[2016] FWC 6624
7
[30] Ms Gonciaz advised that, as she was alarmed about Mr Bienias’ wellbeing, she asked
a friend, Ms Liswoski, to check on him. When Ms Gonciaz was advised that he had been
admitted to hospital, she arranged to return to Australia. On her return, she found unopened
letters from Iplex, including the termination of employment advice. She then contacted
Mr Holmes and met with him in an effort to reverse that employment termination decision.
[31] Ms Liswoski’s evidence went to the steps she took from mid May 2016 to contact
Mr Bienias which ultimately included contacting the Police, and his subsequent admission to
hospital on 30 May 2016. Ms Liswoski’s evidence was that she visited Mr Bienias on 29 and
30 May 2016 and, on one of those days, telephoned a Ms Baker from Iplex to report that
Mr Bienias was in hospital and was suffering from depression. She advised Ms Baker that he
had been depressed for some time.11 Ms Liswoski attempted to dissuade the hospital from
discharging Mr Bienias on 30 May 2016 because of her concerns about his health.
[32] Mr Holmes is the Iplex Operations Manager. His evidence went to his appointment to
Iplex in December 2015 and to the extent to which Mr Bienias reported directly to him. He
detailed his concerns over Mr Bienias’ attendance and to the extent to which he properly
reported on a quality management issue in April 2016.
[33] Mr Holmes detailed the actions he took relative to each of the concerns he had with
Mr Bienias, which included his documentation of meetings, ensuring that Mr Bienias was
aware that he could have a support person present and his invitations to Mr Bienias to utilise
the Iplex Employee Assistance Programme.
[34] Mr Holmes’ evidence was that, particularly in the meetings which he had with
Mr Bienias in May, Mr Bienias was upset, and that, in addition to confirming to Mr Bienias
that he could access the EAP, he offered him transport home and provided him with further
time off work. He understood that Mr Bienias was distressed at what he saw as the threat of
termination of his employment.
[35] Mr Holmes’ evidence went to the steps he took when Mr Bienias did not attend for
work on 13 May and for his rostered shifts from 18 May. These extended to telephone
messages, the written advice12 of 23 May 2016 which he arranged to be delivered to
Mr Bienias’ home, his subsequent instructions to the courier in this respect, and his
involvement in the decision to ask the police to check on Mr Bienias. Mr Holmes confirmed
that he was advised that the police had spoken to Mr Bienias. Mr Holmes’ evidence went to
his consultation with Iplex human resources personnel in the decision-making process which
concluded that Iplex considered that Mr Bienias had abandoned his employment and to the
correspondence sent on 30 May 2016 to confirm that. Mr Holmes confirmed that, at the time
that he signed that letter, he was not aware that Mr Bienias was in hospital but that later that
day he was made aware that Mr Bienias was in hospital. He advised that, sometime later,
Ms Baker confirmed this, but he could not recall exactly when that confirmation was advised
to him.
[36] Mr Holmes confirmed that he met with Ms Gonciaz on 15 June 2016 and subsequently
consulted with other Iplex personnel to decide whether Iplex should reinstate Mr Bienias. He
explained that the decision not to reinstate Mr Bienias reflected concern about his failure to
properly notify Iplex of his attendance issues in May 2016.
Findings
[2016] FWC 6624
8
[37] Before setting out my conclusions relative to the provisions of the FW Act, I have
recorded the conclusions I have reached about the facts. In doing so I note that the nature and
extent of the evidence provided to me by both parties has complicated this. Mr Bienias did not
provide any specialist medical evidence which may have assisted in my conclusions about his
mental health over the period in question. Further, and given Mr Bienias’ submission that
Iplex should have noticed and acted on his mental distress at an earlier time, it is surprising
that Mr Bienias did not call his support person in the discussions which occurred in early May
2016, to give evidence about his behaviour. I have not drawn any adverse inference in these
respects as it is very clear that Mr Bienias did not have access to legal expertise in preparing
his case. Instead, I have simply based my conclusions on the evidence before me. For Iplex’s
part, it is clear that the termination of employment letter was finalised and sent on 30 May
2016, on the same day that Ms Baker of Iplex was advised that Mr Bienias was in hospital.
Ms Baker was present at the determinative conference on 21 September but was not called to
give evidence about how and when that information was disseminated within Iplex. Finally,
whilst assertions have been made in this matter about redundancies that could have impacted
on Mr Bienias, had he not been dismissed, there is no significant evidence before me in this
respect.
[38] I have concluded that, prior to 2016, concerns about Mr Bienias’ notification of sick
leave absences had been raised with him such that he was clearly aware of the general
requirement to notify of an absence.
[39] I have concluded that, because of the work he undertook, Mr Bienias was covered by
the Award, and that he was aware that his employment was also covered by an employment
contract.13 This contract specified sick leave notification requirements in a manner consistent
with both the Award and normal workplace relations practices. Additionally, the Iplex
Employees Handbook14 confirmed notification requirements.
[40] Mr Bienias’ positive alcohol test reading in December 2015 followed a random test.
The provisions of the Employee Handbook state:
“Alcohol and Drugs
You must not use, possess, distribute or sell any type of drug on company premises
at any time.
Unless a social function is authorised by a senior site Manager, you must not
consume, possess, distribute or sell alcohol on company premises, either during or
after normal working hours.
You must not attend work if impaired by drugs or alcohol. If you report for work in a
condition that gives your Team Leader/Manager reasonable grounds to believe that
you are under the influence of drugs and/or alcohol, and that you are unable to
perform your duties properly or with due care to yourself or to others, you will be
sent home on a first offence.
A second occurrence will be dealt with as outlined under ‘Performance
Management’ above, and may lead to dismissal.
[2016] FWC 6624
9
If you are prescribed medication that may affect your work performance, you must
tell your Team Leader/Manager before starting work. The Company may seek
advice in specific instances from its nominated medical practitioner. Alternative
duties may be arranged subject to medical advice.
Any employee who conducts business on behalf of Iplex on or away from company
premises should note that Workers Compensation claims resulting from any incident
subsequent to, or involving consumption of drugs or alcohol are likely to be
declined.”15
[41] Notwithstanding this, I have concluded that Iplex had a legitimate basis upon which to
be concerned about a positive alcohol reading late in Mr Bienias’ shift and that it was entitled
to address this issue through a written warning. I do not consider that the inclusion, in this
warning,16 of a very common caution that further behaviours of that nature may result in
further disciplinary action, up to and including termination of employment, was anything
other than a fair caution. It did not and could not reasonably be taken as a threat of imminent
dismissal but, rather, reflected the disciplinary process referenced in the Iplex policies.
[42] Mr Bienias was drug and alcohol tested on his return to work after this first incident.
That was a targeted test but I consider that Iplex was clearly entitled to check that Mr Bienias
was not again affected by alcohol. I do not consider that this second test, which provided a
negative result, reflected any unfair treatment toward Mr Bienias.
[43] Mr Bienias did not provide advice of his absences in January 2016 in a manner
consistent with the Iplex requirements. He may well have been tired and jet-lagged but he
knew the leave notification requirements and did not follow these requirements.
Notwithstanding this, on 28 January Mr Bienias was clearly told of the requirement that he
expressly notify Mr Holmes of any future absences.17 He did not follow that instruction,
which was a lawful and reasonable request, when he was absent again on 7 March 2016. In
this context there was a clear basis for the warning given to him on 10 March 2016.18 Again,
the general caution about repeated conduct of that nature giving rise to further disciplinary
action can only be regarded as consistent with the purpose of a warning and could not
reasonably be taken as a threat of imminent dismissal.
[44] Mr Bienias was a Team Leader. In that context I have concluded that Iplex was
entitled to investigate why he elected not to report a quality management failing in his work
unit at the production meeting on 19 April 2016. Although he was told this matter would be
investigated, the delay in further advice about that investigation indicates that the matter was
not regarded, at that time, as particularly significant.
[45] Mr Bienias was again absent on 2 and 3 May 2016 and did not notify Mr Holmes of
his absence in accordance with the instructions given to him. This matter was fairly
investigated in meetings on 4 and 5 May 2016. Mr Bienias did not challenge the accuracy of
Mr Holmes’ notes of those meetings and I have concluded that they demonstrate that the
meetings were conducted fairly and equitably. I have later addressed the extent to which
Mr Bienias’ behaviours at those meetings should have prompted different actions on the part
of Iplex.
[46] At the meeting on 4 May 2016 Mr Bienias was clearly told that he could access the
EAP. The meeting notes indicate an exchange along the following lines:
[2016] FWC 6624
10
“JH – Bogdan, as always, the EAP service is available should you need talk to someone.
As you kiow you can do so knowing the service is confidential and available anytime.
I strongly urge you to contact hem if you feel the need to talk about any of your
concerns. (sic)
BB – Thank you Jason, (stood up and put hand out to shake hands with me)”
[47] Mr Bienias had the option of utilising that EAP. I have concluded that he elected not
to do so. He also elected not to inform Mr Holmes of any reasons for his distress at that time.
[48] I have concluded that the formal allegations put to Mr Bienias on 5 May 2016 fairly
reflected the matters that were put to Mr Bienias at the following meetings on 10 and 11 May
2016. Further, that the Iplex conclusion advised to Mr Bienias on 11 May 2016, that he would
be given a final warning and would be placed on a performance improvement plan reflected a
normal disciplinary process directed at preserving his employment, provided that he modified
his behaviours. Whilst that final warning was prepared, it was not given to Mr Bienias
because he did not, in practical terms, attend work again.
[49] In overall terms, I have concluded that there was no pattern of behaviour, on the part
of Iplex which was intended or had the probable consequence of bringing Mr Bienias’
employment to an end.
[50] Mr Bienias briefly attended work on 12 May 2016. He handed over his keys to another
employee and then left. At that time he was aware that he was to be placed on a final warning
but again did not notify of his absence in accordance with the clear instructions given to him.
As I have already observed, he was absent from the following seven rostered shifts.
[51] I have concluded that, as of 12 May 2016, Mr Bienias was capable of sufficiently clear
thought so as to know that he had to bring in keys. I have concluded that, at least at that time
he was also aware of the notification requirements but decided to ignore these.
[52] I have accepted Mr Bienias’ evidence about his mental health to the extent that I have
concluded that at some time after 12 May 2016 and up to the time he was admitted to
hospital, he was not able to think or act clearly, he did not respond to messages or visitors and
did not check his letterbox.
[53] The hospital based assessment that, from 28 May 2016, Mr Bienias was suffering from
depression is clear. However, that assessment does not establish what Mr Bienias could or
could not do, or his mental capabilities. Mr Bienias had a medical certificate on 30 May
which he could have bought to the attention of Iplex and, by 1 June 2016, he was able to
function sufficiently well enough to ask his doctor for a further certificate which, again, he did
not provide to Iplex.
[54] I have concluded that the evidence of Ms Liswoski confirms that, on 30 May 2016,
Iplex was made aware that Mr Bienias was in hospital. I have concluded that this information
was not conveyed to Mr Holmes before he signed the termination of employment letter.
[55] On the facts before me, I am not satisfied that there is any evidence that indicates that
the disciplinary actions taken against Mr Bienias, or the termination letter of 30 May 2016,
[2016] FWC 6624
11
were related to any planned reduction in the number of Iplex team leaders or were directed
toward avoiding any consequent redundancy payment obligations.
[56] Finally, the evidence before me indicates that, since 30 May 2016, Mr Bienias has
been unable to work and that he remains medically certified as unable to work until, at least
the end of September 2016.
Was Mr Bienias dismissed?
[57] The initial issue to be determined in this matter goes to whether Mr Bienias was
dismissed by Iplex or whether the termination of his employment was an event which he
precipitated by virtue of his unexplained absences.
[58] Section 386 of the FW Act states:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated
on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to
do so because of conduct, or a course of conduct, engaged in by his or her
employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a
specified period of time, for a specified task, or for the duration of a specified
season, and the employment has terminated at the end of the period, on
completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was,
for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training
arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or
her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
[2016] FWC 6624
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(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the person
under a contract of that kind is, or was at the time of the person’s employment, to
avoid the employer’s obligations under this Part.”
[59] Clause 21 of the Award19 states:
“21. Abandonment of employment
21.1 The absence of an employee from work for a continuous period exceeding
three working days without the consent of the employer and without notification to the
employer is prima facie evidence that the employee has abandoned their employment.
21.2 If within a period of 14 days from their last attendance at work or the date of
their last absence in respect of which notification has been given or consent has been
granted an employee has not established to the satisfaction of their employer that they
were absent for reasonable cause, the employee is deemed to have abandoned their
employment.
21.3 Termination of employment by abandonment in accordance with clause 21—
Abandonment of employment operates as from the date of the last attendance at work
or the last day’s absence in respect of which consent was granted, or the date of the
last absence in respect of which notification was given to the employer, whichever is
the later.”
[60] Iplex contend that Mr Bienias’ failure to notify of his absence from work met the
circumstance described in the Award so that I should conclude that Mr Bienias’ employment
was not terminated by Iplex.
[61] Iplex agreed that various decisions of the Commission had demonstrated differing
approaches to deeming provisions of this nature. I have adopted an approach fundamentally
based on the following authorities.
[62] I agree with the following observation made by Deputy President Asbury in Sharpe v
MCG Group Pty Ltd:20
“[29] The concept of abandonment of employment is not new to employment law. It
is a term that is often loosely used, or used without consideration of the effect of the
abandonment upon the employment relationship or the contract of employment.
Generally, abandonment arises in circumstances where an employee is absent from the
workplace without reasonable excuse, or has failed to communicate with the employer
to provide an excuse for being absent. There are cases where it has been held that the
conduct of the employee in abandoning his or her employment has brought the
employment to an end so that there has been no termination at the initiative of the
employer. In contrast, there are cases where it has been held that abandonment on the
part of an employee constitutes repudiation of the employment contract, and that the
election of the employer to accept the repudiation is the action which brought about the
termination of employment. There are also cases where the focus has been on whether
or not conduct on the part of an employee constituted abandonment of employment,
[2016] FWC 6624
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and because of the findings in relation to this point, there was no requirement to
consider whether the abandonment per se brought about the termination of the
employment.
[30] As Professor Stewart has observed:
“It also appears that a contract may be terminated by abandonment. This occurs
where an employee walks off the job or fails to return from a period of
authorised leave, in circumstances that make it reasonably apparent they no
longer intend to be employed. This might well be analysed as repudiation by
the employee, so that the contract is actually terminated by the employer when
accepting that the employment has ended. But there are decisions to the effect
that termination by abandonment does not constitute a ‘dismissal’ or
‘termination’ by the employer.”
[31] At common law it is well established that the concepts of termination of
employment and the discharge of a contract of employment are different, and that it
does not follow that because a wrongful dismissal is effective to bring the employment
relationship to an end, it also discharges the contract of employment. There is also
authority for the proposition abandonment of employment is conduct that constitutes
repudiation of the contract of employment, and that acceptance by an employer of the
repudiation brings the employment relationship to an end, rather than the abandonment
itself.”
(references removed)
[63] In the Full Bench decision in Searle v Moly Mines Limited21 (Moly Mines) the
distinction between the termination of an employment relationship and the termination of the
contract of employment was considered. The Full Bench stated:
“[21] It is apparent from the last sentence of the passage that the Commission was
considering the matter in the context of an allegation that an employee’s resignation
was a constructive termination by the employer. That sentence apart, the statement of
principle is the one we shall apply namely: did the employer take some action which
was intended to bring the employment to an end or had the probable result of bringing
the employment relationship to an end.
[22] Before turning to the facts of this case there is another issue which arose in the
course of the submissions with which we should deal. That matter concerns the
relevance of the principles governing the termination of a contract of employment. It is
clear that the statutory test relates to termination of the employment relationship, not
termination of the contract of employment. The difference is well illustrated by the
following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ
in Byrne and Frew v Australian Airlines Ltd:
“It does not appear to have been doubted in this country that a wrongful
dismissal terminates the employment relationship notwithstanding that the
contract of employment may continue until the employee accepts the
repudiation constituted by the wrongful dismissal and puts an end to the
contract. That was accepted by both the majority and minority in Automatic
[2016] FWC 6624
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Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ
said (at 454):
“An employer terminates the employment of a servant when he dismisses him,
though, as I say hereafter, such a dismissal does not put an end to the contract
between the parties. An argument that a dismissal because wrongful was a
nullity was raised and rejected in both Williamson's Case [Williamson v The
Commonwealth, (1907) 5 CLR 174 at 185] and Lucy's Case [Lucy v The
Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”
And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:
“there is nothing in the general law preventing the wrongful dismissal of a
servant operating to discharge him from service, notwithstanding that he
declines to accept the dismissal as absolving him from further performance but
keeps the contract open and remains ready and willing to serve.” ”
[23] In the case of wrongful dismissal, as the passage shows, the employment is
terminated by the employer even though the contract continues until the employee
accepts the repudiation, thereby bringing the contract to an end. In applying the
statutory test it is the termination of the employment relationship which is important.
[24] We turn now to the circumstances of this case. In doing so we note that the
question is whether the appellant’s employment was terminated at the respondent’s
initiative. It should be clear that no issue arises at this stage as to the merits of the
appellant’s case. It is therefore not relevant to ask whether particular conduct was
justified, reasonable or appropriate except to the extent that the answer may shed light
on the issue of whether the appellant’s employment was terminated at the respondent’s
initiative.”
[64] If the approach in Moly Mines is applied to Mr Bienias’ circumstances, the issue
becomes one of whether Iplex terminated Mr Bienias’ employment by sending him the letter
of 30 May 2016. That letter stated:
“Dear Boguslaw,
Re: ABSENCE FROM WORK
You have been absent from work since 13 May 2016 without our consent and without
notification.
We have tried to contact you in writing on 23 May 2016 (via courier), 26 May 2016
(via express post), attempted to call your phone several times, and also arranged for a
welfare check via the Western Australian Police on Thursday 26 May 2016. To date
have not had a response from you.
As such, we have determined that you have abandoned your employment with Iplex
Pipelines and, consequently, your employment with the company is terminated with
effect on 13 May 2016, being the last shift you worked for the company.
[2016] FWC 6624
15
All final monies, including your 5 weeks’ notice period, will be paid to you through
our payroll department on receipt of all tools and equipment, keys or any other
company property in your possession.
Please contact me on xxxx xxx xxx to arrange the return of the above items.
Jason Holmes
Plant Manager
Iplex Pipelines Australia Pty Limited”22
[65] If that letter is to be taken as advice of an employment termination at the initiative of
Iplex, Mr Bienias’ application then needs to be considered on its merits. Alternatively, if the
letter of 30 May 2016 simply confirms that Mr Bienias had abandoned his employment, then
he was not dismissed, and the application can be taken no further.
[66] In Moly Mines, the Full Bench remarked on the approach which is required to
determine an issue of jurisdiction of this nature. The Full Bench stated:
“[38] … Where questions of jurisdiction are involved it is the facts which are
relevant, not the parties’ subjective beliefs or the reasonableness of their conduct.
[39] We have already indicated that the statutory test relates to the termination of
the employment relationship. The application of the common law principles relating to
termination of the contract of employment may not yield the correct answer in any
given case. It can be seen from the passage we have quoted that the Commissioner’s
analysis drew heavily on those principles. Those principles may not be irrelevant to
the inquiry, but in this case they proved to be a distraction from the question posed by
the statute.23
[67] It is appropriate that I note that in Moly Mines the Full Bench was considering an
employment relationship which involved an employment contract which addressed the
concept of abandonment of employment in quite different terms to the Award covering
Mr Bienias.
[68] Indeed, I think it quite likely that some of the divergences in decisions dealing with
abandonment of employment reflect the very different manner of treatment of this concept in
employment contracts, enterprise agreements, and Awards. Some guidance in relation to this
issue can be found in another Full Bench decision, Gauci v GlaxoSmithKline Australia Pty
Ltd.24 In that matter the Full Bench considered whether an absence from work for a
continuous period of three working days without the employer’s consent or without
notification in the context of an enterprise agreement provision set out in the following terms:
“Abandonment of Employment
(i) The absence of an employee from work for a continuous period and exceeding 3
working days without the consent of the employer and without notification to
management shall be prima facie evidence that the employee has abandoned his or her
employment. Termination of employment by abandonment in accordance with this sub
clause shall operate from the date of the last attendance at work in accordance with the
considerations at clause 8(f)(iii).”25
[2016] FWC 6624
16
[69] In that matter, the Full Bench agreed with the first instance decision, to the effect that
the employee had not been absent from work in a manner which met the requirements of that
particular clause. The Full Bench then continued, to state:
“[19] There is an additional contention advanced by the respondent’s counsel which
requires comment. It was argued that even if the respondent had abandoned his
employment that would not constitute termination. It would constitute repudiation of
the contract. Because GSK had elected to treat the repudiation as terminating the
contract the employment was terminated at GSK’s initiative. This argument raises an
issue of potential significance in any case involving conduct by an employee which
constitutes repudiation of the contract of employment. It is not necessary to decide the
issue in this case, however, because we have not disturbed the finding that there was
no abandonment and therefore the question of repudiation does not arise. But we
observe that the argument may blur the distinction between termination of employment
and termination of the contract of employment. The question posed by the statute is
whether the employment was terminated at the initiative of the employer. An analysis
based on contractual notions of repudiation and acceptance may not always correspond
with the statutory concept.”
[70] In this context, it then becomes necessary to consider the specific provisions of clause
21 of the Award so as to determine their effect. In this regard, I have applied the general
principles governing the interpretation of industrial instruments. Whilst these principles have
been addressed in numerous circumstances,26 I have applied the approach articulated by
French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services
Union27 in the following terms:
“53 The construction of an award, like that of a statute, begins with a consideration
of the ordinary meaning of its words. As with the task of statutory construction regard
must be paid to the context and purpose of the provision or expression being
construed. Context may appear from the text of the instrument taken as a whole, its
arrangement and the place in it of the provision under construction. It is not confined
to the words of the relevant Act or instrument surrounding the expression to be
construed. It may extend to “ … the entire document of which it is a part or to other
documents with which there is an association”. It may also include “ … ideas that gave
rise to an expression in a document from which it has been taken” — Short v FW
Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian
Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth
(1998) 82 FCR 175; 80 IR 345 (Marshall J).”
[71] Further, in Kucks v CSR Ltd, Madwick J stated:
“It is trite that narrow or pedantic approaches to the interpretation of an award are
misplaced. The search is for the meaning intended by the framer(s) of the document,
bearing in mind that such framer(s) were likely of a practical bent of mind: they may
well have been more concerned with expressing an intention in ways likely to have
been understood in the context of the relevant industry and industrial relations
environment than with legal niceties or jargon. Thus, for example, it is justifiable to
read the award to give effect to its evident purposes, having regard to such context,
despite mere inconsistencies or infelicities of expression which might tend to some
[2016] FWC 6624
17
other reading. And meanings which avoid inconvenience or injustice may reasonably
be strained for. For reasons such as these, expressions which have been held in the case
of other instruments to have been used to mean particular things may sensibly and
properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A
court is not free to give effect to some anteriorly derived notion of what would be fair
or just, regardless of what has been written into the award. Deciding what an existing
award means is a process quite different from deciding, as an arbitral body does, what
might fairly be put into an award. So, for example, ordinary or well-understood words
are in general to be accorded their ordinary or usual meaning.”28
[72] Clause 21 of the Award is a provision which is replicated in only a very small number
of Awards. In this sense it is rare. Most industrial instruments either do not address the issue
of abandonment of employment, or do so in a less prescriptive fashion. The current provision
has remained largely unchanged since it was inserted into a predecessor of the Award in 1970.
[73] Clause 21.1 of the Award must be read on the basis that an absence, without the
consent of the employer and without notification to the employer, for a continuous period
exceeding three working days, creates a presumption that the employee has abandoned his or
her employment and that there is, in effect, an obligation on that employee to establish that
this is not the case. In terms of the concept of repudiation of the contract of employment such
as was the case in the circumstances addressed in Moly Mines and Gauci, if an employee’s
absence met the requirements of clause 21.1, the provisions of this clause would appear to
create an obligation on the employee to establish whether that prima facie case was
appropriate in a given circumstance.
[74] However, Clause 21.2 takes this concept a step further. The reference to 14 days must
refer to 14 calendar days rather than “working days”. That much is clear from the different
expressions used in sub-clauses 21.1 and 21.2. The concept of “the employee is deemed” must
be construed such that it equates with the concepts of “judged”, or “regarded” (The Macquarie
Dictionary). I have adopted the position that this provision must be read in the context that it
specifies that a failure to notify the employer, or obtain the employer’s consent to an absence
within 14 days of the employee’s last attendance at work means that the employee is regarded
or judged as having abandoned their employment. That abandonment must be regarded as an
employment termination on the basis that it ends the employment relationship. Clause 21.3
establishes further certainty associated with this “deeming” provision in that it provides a date
upon which that employment termination takes effect, being the date of the last attendance at
work, or the last day’s absence with respect to which consent was given.
[75] This approach potentially gives rise to obvious inequities. For instance, if an employee
is clearly incapacitated such that they are unable to communicate with the employer for more
than 14 days, clause 21.2 appears to regard the employee as, nevertheless, having abandoned
his or her employment. I have considered whether that type of iniquity means that the Award
clause 21.2 should be regarded as a discretionary provision which does not operate until the
employer accepts the repudiation of the contract. I am unable to apply this approach. The
Award represents mandatory minimum employment provisions which apply to both
employers and employees. Clause 21 is within Part 3, Types of Employment and Termination
of Employment. Other clauses within this Part set out obligatory provisions relating to, for
instance, full-time and casual employment definitions, termination of employment and
[2016] FWC 6624
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redundancy obligations. Like the other clauses in this Part of the Award, clause 21.2 cannot
be regarded as some form of discretionary provision. It is absolute in its terms. Indeed, if this
provision is capable of being regarded as a discretionary provision, then so too must other
provisions which are clearly prescriptive.
[76] That said, it must be open to an employer, not to regard an employee who has been
absent, without notice for more than 14 days to have abandoned their employment. In that
situation, it may well be that there is some form of new, or renewed employment contract.
Because that circumstance has not arisen here, I have not further addressed it.
[77] Notwithstanding my significant reservations about the potential inequities created by
this strict approach to the application of clause 21 of the Award, I am unable to apply that
clause in any other manner.
[78] Consequently, Mr Bienias’ failure to give notification to Iplex of his absence for more
than 14 days, means that he must be judged to have abandoned his employment. The letter of
30 May 2016 must then be taken to simply acknowledge that employment abandonment. I
have considered the extent to which the payment of five weeks’ notice could be construed as
an indication that the employment termination was at the initiative of Iplex, if only in the
sense that it confirmed the employer’s acceptance of that repudiation. I have concluded that
the letter cannot be construed in that context, because, to do so, would again introduce an
element of discretion in the interpretation of clause 21.2.
[79] I have considered the extent to which Mr Bienias’ “Individual Terms And Conditions
Of Employment”,29 which applied from 1 October 2015, supported the provisions of the
Award. I do not think that those provisions establish different employment rights that override
the provisions of the Award clause 21.
[80] Finally, I note that the issue here does not relate to whether or not it was fair for Iplex
not to reinstate Mr Bienias after Ms Gonsciarz requested that. There is simply no jurisdiction
relative to that issue.
Conclusion
[81] My conclusions about the operation of clause 21 of the Award mean that I do not
consider that Mr Bienias was dismissed at the initiative of Iplex. Had he provided advice, or
even a medical certificate, during that critical 14 day period, a different conclusion may have
been invited. Mr Bienias’ circumstances are unfortunate but I am unable to regard these
circumstances as meeting the definition of dismissed in s.386. Consequently, the termination
of his employment cannot be regarded as unfair and the application must be dismissed
accordingly. An Order (PR585426) to this effect will be issued.
SEAL OF THE FAIR W om SENIOR DEPUTY FOISSN SIDENT
[2016] FWC 6624
19
Appearances:
B Bienias (and A Gonciarz) on his own behalf.
R Wade counsel for the Respondent.
Hearing details:
2016.
Perth:
September 21.
Printed by authority of the Commonwealth Government Printer
Price code C, PR585425
1 [2016] FWC 5357
2 [2016] FWC 6166
3 Transcript Audio, 21 September 2016, 11.24am
4 Transcript Audio, 21 September 2016, 11.25am
5 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 189
6 Transcript Audio, 21 September 2016, 11.46am
7 Transcript Audio, 21 September 2016, 11.50am
8 Transcript Audio, 21 September 2016, 12.06pm
9 Transcript Audio, 21 September 2016, 11:51:30am
10 Transcript Audio, 21 September 2016, 12.05pm
11 Transcript Audio, 21 September 2016, 12.15pm
12 Exhibit I2, Attachment JH-15
13 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 1-14
14 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 147-183
15 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 163-164
16 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 201-203
17 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 191
18 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 192
19 Manufacturing and Associated Industries and Occupations Award 2010
20 [2010] FWA 2357
21 [2008] AIRCFB 1088
22 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, page 212
23 [2008] AIRCFB 1088, paras [38] and [39]
24 [2008] AIRCFB 439
25 [2008] AIRCFB 439, from para [8]
26 see AMIEU v Golden Cockerel [2014] FWCFB 7447, paras [19]-[41]
27 [2006] 153 IR 426
28 [1996] 66 IR 182
29 Iplex book of documents, called “Respondent’s Consolidated Exhibit Book, pages 1-14
