1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Clargie Saltmere
v
Mount Isa Mines Limited
(C2024/4949)
COMMISSIONER DURHAM BRISBANE, 21 NOVEMBER 2024
Application to deal with contraventions involving dismissal – jurisdictional objection –
whether employee dismissed – repudiation by employee – abandonment of employment –
repudiation of employment contract – application dismissed.
[1] On 18 July 2024, Mr Clargie Saltmere made a general protections application to the
Commission under section 365 of the Fair Work Act 2009 (the Act). Mr Saltmere alleges that
he was dismissed by Mount Isa Mines Limited (MIM) on 4 July 2024 in contravention of his
workplace rights.
[2] MIM opposed the application, by way of raising a jurisdictional objection that the
Applicant was not dismissed.
[3] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain
Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal
under section 365 of the Act before the Commission can exercise powers conferred by section
368.1 It is therefore necessary to determine the jurisdictional issue raised by the Respondent
before Mr Saltmere’s application can proceed.
[4] For the reasons outlined below, I find that Mr Saltmere was not terminated on the
employer’s initiative, as he had abandoned his employment consequently causing a repudiation
of the employment contract, and as such the application is dismissed.
Procedural Background
[5] I issued directions on 2 September 2024, for the parties to file their material.
[6] The question of whether Mr Saltmere was dismissed was dealt with at a hearing on 14
November 2024. Mr Saltmere represented himself and Mr David Kerr, General Manager Legal,
represented MIM.
[7] Both parties filed written submissions and witness statements. However, neither party
called any witnesses, apart from Mr Saltmere who provided oral evidence during the hearing.
[2024] FWC 3221
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3221
2
[8] MIM’s submissions included statements from Ms Sarah Arsenic (Advisor - Human
Resources), Mr Scott Ezzy (Superintendent - Blast Furnace) and Mr Mark Bull (Supervisor -
PB SM Blast Furnace), however MIM chose not to call them to provide sworn evidence. Mr
Saltmere also advised chambers that he did not wish to cross examine them. It is also noted that
Mr Saltmere, having had access to the statements as filed, did not file any submissions in reply
or raise any further issues in his oral evidence.
BACKGROUND
[9] Mr Saltmere accepted a position with MIM in the role of PBSM Operator MPATT on
11 July 2023. Mr Saltmere’s role was based in the Metallurgical Plants Area in Mount Isa.
[10] Mr Saltmere worked as an Operator in Mount Isa from 2 August 2023 to 2 April 2024
(his last attended shift). During this time, Mr Saltmere was responsible for his own
accommodation in Mount Isa. MIM submit that at no stage during Mr Saltmere’s employment
did they provide, or suggest it could provide, accommodation with the role.
[11] During the hearing, Mr Saltmere confirmed that when he accepted the role in Mount
Isa, he was living in his partner’s accommodation. As I understand his evidence, his partner
was relocated to Cairns in March 2024 and Mr Saltmere relocated to Cairns at this time as well.
It is noted that MIM do not operate a Metallurgical Plants Area in Cairns.
[12] After moving to Cairns, Mr Saltmere requested a period of leave from 15 April 2024 to
26 April 2024 (inclusive) to provide him with time to arrange accommodation in Mount Isa.
[13] Mr Saltmere was due to return to work on 1 May 2024 however Mr Saltmere did not
return.
[14] On 27 May 2024 a phone meeting was held between Mr Saltmere, Mr Ezzy, Ms
Arsenic, and Mr Bull. During the meeting Mr Saltmere informed MIM that he was not intending
to return to work as he had not secured accommodation in Mount Isa.
[15] On 20 June 2024 MIM sent Mr Saltmere a letter regarding his continued absence (which
at this time consisted of 28 missed shifts). The letter explained that MIM considered his actions
amounted to a rescission of his employment contract. MIM gave Mr Saltmere until 30 June
2024 (10 days) to advise if this was not the case and further advised that, should he fail to
respond, this would be taken as confirmation of the recission of his contract and that they would
regard the employment relationship as ending effective 1 July 2024.2
[16] Mr Saltmere failed to respond to the letter and did not attend the rostered shifts.
Consequently, on 9 July 2024, having not received a response, MIM wrote to Mr Saltmere,
advising that due to his lack of response, they had determined that he had abandoned his
employment, and that they considered that the employment relationship came to an end on 4
July 2024.3
Relevant Legislation
[17] Section 365 of the Act provides:
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“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial
interests of the person, alleges that the person was dismissed in contravention of this
Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.”
[18] Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal”
for these purposes (and other purposes of the Act) is defined in s.386(1), which provides:
“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.”
Applicant’s Submissions:
[19] Mr Saltmere’s submissions and statement were filed as one document.
[20] The submissions focus in large part on the question of whether or not he was promised
by MIM arranged accommodation in Mount Isa, and other attempts by him to secure
arrangements that would have allowed him to continue living in Cairns, whilst working in
Mount Isa.
[21] Mr Saltmere argues that he had formed the view that MIM provided accommodation
was available to employees in Mount Isa. He states that Ms Roslyn Saddington (HR employee)
was his contact person for these matters and had advised that there was accommodation in
Mount Isa and that the cost was $50 per night.
[22] Mr Saltmere states that Mr Ezzy said to him “if we say yes to you, we have to say yes
to everyone” regarding discussions around accommodation.4 Mr Saltmere took this to imply
that accommodation is available but is a personal discretion.
[23] Regarding flexible work arrangements, Mr Saltmere states that during a phone
conversation with Ms Arsenic, they discussed flexible work arrangements and he requested that
she email him further information. Mr Saltmere acknowledged that he was advised that he could
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forward any request for such arrangements via email however wondered why he needed to do
this as he had asked HR for this information. He further states that Mr Bull, had indicated that
flexible work arrangements do not get granted at MIM, as such he felt encouraged to not bother
with applying for a flexible work arrangement.5
[24] Mr Saltmere states he also queried leave without pay but was not given formal processes
regarding how to apply.
[25] In response to MIM regarding why he ceased to attend his place of employment without
a proper excuse or explanation, Mr Saltmere states he had been very clear with MIM that he
was not able to attend work due to having no residence and was seeking an alternative
roster/flexible work arrangement. Mr Saltmere did not provide any copies of correspondence
or submit particulars giving effect to this argument.
[26] Mr Saltmere states he initiated the meeting between Mr Ezzy, Ms Arsenic, Mr Bull and
himself in order to “get on the same page”, because he was having three very different
conversations with each of them.6 Mr Saltmere states that at no point did MIM seek a meeting
or anything to work together for an outcome.
Respondent’s Submissions:
[27] MIM submit that Mr Saltmere’s failure to respond to their letter sent on 20 June 2024
and failure to provide any justification regarding his non-attendance for his rostered shifts over
the course of nearly two months amounted to a positive step from Mr Saltmere to bring his
employment to an end.7
[28] MIM state that they had provided Mr Saltmere with numerous opportunities to resolve
his concerns (such as a leave period to arrange accommodation as well as a period of time to
propose a flexible work arrangement).
[29] On the point of whether MIM dismissed Mr Saltmere within the meaning of s.386, they
submit it is well established that repudiatory conduct, of itself, does not bring rights and
obligations under a contract to an end. Only where the party who is the subject of the
repudiatory breach accepts that repudiation will the contract be brought to an end. In this case
Mr Saltmere ceased to attend his place of employment without a proper excuse or explanation,
thereby demonstrating an unwillingness to substantially perform his obligations under his
employment contract.
[30] MIM submit the actions of Mr Saltmere show a clear intention that he no longer wished
to be bound by the contract of employment, by way of Mr Saltmer’s actions of:
a. moving away from Mount Isa to Cairns;
b. failing to arrange accommodation in Mount Isa following his move to Cairns;
c. failing to attend for rostered shifts for almost 2 months; and
d. failing to respond to the letter of 20 June 2024.
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[31] MIM referred to Muhammed Ali Qureshi v Spotless Services Australia Limited [2023]
FWC 2411, where it was held that acceptance of repudiation does not constitute "dismissal" at
the initiative of the employer for the purposes of the FWA.
[32] MIM submit that although it was their action in accepting the repudiation which
terminated the employment contract with the Applicant, this was not a dismissal within the
meaning of the s.386 because the employment relationship had by then already ended due to
Mr Saltmere’s renunciation of his obligations to attend work when rostered. As such, there was
no termination on the initiative of MIM.
[33] In response to Mr Saltmere’s submissions/statement, MIM submit that in very
exceptional circumstances, MIM might provide an employee with temporary accommodation
(for example, where an employee becomes homeless unexpectedly). However, even in these
circumstances, the employee would still need to pay for the accommodation which is roughly
$55 per night. MIM state that their HR have always maintained a consistent message to Mr
Saltmere that accommodation is not available with his Mount Isa based role or in his
circumstances. Further that Mr Saltmere’s discussions with Mr Ezzy are incorrect, as he did not
suggest that providing accommodation was discretionary. Mr Ezzy advised Mr Saltmere it was
not possible.8 It is further submitted that if the standard position was changed and free
accommodation was provided to Mr Saltmere then every other employee in Mr Saltmere’s
position would expect free accommodation.9 Ms Arsenic also states on 12 April 2024, Mr
Saltmere contacted her regarding the possibility of securing accommodation in Mount Isa. Ms
Arsenic advised Mr Saltmere that his position as an Operator is residentially based in Mount
Isa, there is no Company supplied accommodation for his position and that it is his
responsibility to secure accommodation.10
[34] In response to Mr Saltmere’s discussions with Ms Arsenic regarding flexible working
arrangements, MIM submit that Ms Arsenic requested that he put all his questions into an email
so that she could respond to them appropriately. Ms Arsenic states that on 2 May 2024 Mr
Saltmere called her to advise that he had not secured accommodation in Mount Isa and that he
failed to attend his rostered shifts as a result. Mr Saltmere asked about flexible working
arrangements, to which Ms Arsenic advised that any request for flexible working arrangements
would need to be submitted in writing, via email, for the application to be reviewed. Further,
that their request for flexible working arrangements would need to include the change in work
arrangements they were seeking, as well as the reason for the request.11
[35] In response to Mr Saltmere's discussions with Mr Bull, Mr Bull advised that flexible
working arrangements were not possible given that it was a Mount Isa based role.12 He further
advised that where possible, depending on the role, MIM, can accommodate flexible working
arrangements but it will always depend on the inherent requirements of each particular role.13
[36] In response to Mr Saltmere’s submissions regarding his approved annual leave, it would
appear that Mr Saltmere has confused his approved leave from 7 April 2024 to 10 April 2024
(which was requested in November 2023). Following this annual leave period, Mr Saltmere
advised MIM that he had not secured accommodation in Mount Isa. MIM then granted him
annual leave from 15 April 2024 to 24 April 2024, then special leave until 26 April 2024 as Mr
Saltmere exhausted his annual leave entitlements.14
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2411.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2411.pdf
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[37] In response to Mr Saltmere’s submission that he had been clear with MIM that he was
unable to attend due to not having a residence and was seeking flexible work arrangements,
MIM submit it is not their responsibility to ensure that its employees attend work when they
are rostered on to do so.15 In this case, Mr Saltmere moved to Cairns on his own accord and
then expected that MIM do everything it could to ensure he could still work from Cairns. Mr
Saltmere failed to take the appropriate measures to ensure he could continue to work in his role
in Mount Isa. Mr Saltmere also failed to respond to MIM's letters and attempts to confirm he
would return to work, resulting in MIM accepting his repudiation of his employment contract.
[38] In response to Mr Saltmere’s submission regarding the meeting, MIM submit that Mr
Ezzy, Ms Arsenic, and Mr Bull attended a meeting with Mr Saltmere to reinforce the consistent
messaging that had been provided to him previously, that accommodation could not be provided
to someone in Mr Saltmere’s role and that flexible working arrangements were not possible
given the inherent requirements of his role, being Mount Isa based.
Consideration
[39] Determining whether Mr Saltmere was dismissed within the meaning of s.386(1)
requires consideration of two elements. The first concerns termination on the employer’s
initiative and the second, resignation in circumstances where the person was forced to do so
because of conduct or a course of conduct. It was not pressed and clear from the facts that Mr
Saltmere did not resign from his roles. As such the first element would be the relevant
consideration.
[40] In determining whether there has been a termination at the Respondent’s initiative, the
reference to termination is in reference to that of the employment relationship, not the
contract.16
[41] In regard to abandonment of employment, the concept was examined by the Full Bench
in Abandonment of Employment (4 yearly review of modern awards) noting the following:17
“Abandonment of employment” is an expression sometimes used to describe a situation
where an employee ceases to attend his or her place of employment without proper
excuse or explanation and thereby evinces an unwillingness or inability to substantially
perform his or her obligations under the employment contract. This may be termed a
renunciation of the employment contract. The test is whether the employee’s conduct is
such as to convey to a reasonable person in the situation of the employer a renunciation
of the employment contract as a whole or the employee’s fundamental obligations under
it. Renunciation is a species of repudiation which entitles the employer to terminate the
employment contract. Although it is the action of the employer in that situation which
terminates the employment contract, the employment relationship is ended by the
employee’s renunciation of the employment obligations.”
[42] Further, in Susann Sharpe v MCG Group Pty Ltd, then Commissioner Asbury
summarised the concept and relevant findings as follows:18
“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
[2024] FWC 3221
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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, 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.”
[43] The High Court of Australia also considered repudiation in Koompahtoo Local
Aboriginal Land Council v Sanpine Pty Ltd in which Gleeson CJ, Gummow, Heydon and
Crennan JJ said as follows (references omitted):19
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted
to repudiatory breach of contract. The term repudiation is used in different senses. First,
it may refer to conduct which evinces an unwillingness or an inability to render
substantial performance of the contract. This is sometimes described as conduct of a
party which evinces an intention no longer to be bound by the contract or to fulfil it only
in a manner substantially inconsistent with the party's obligations. It may be termed
renunciation. The test is whether the conduct of one party is such as to convey to a
reasonable person, in the situation of the other party, renunciation either of the contract
as a whole or of a fundamental obligation under it. (In this case, we are not concerned
with the issues that arise where the alleged repudiation takes the form of asserting an
erroneous interpretation of the contract. Nor are we concerned with questions of
inability as distinct from unwillingness.) Secondly, it may refer to any breach of contract
which justifies termination by the other party. It will be necessary to return to the matter
of classifying such breaches. Campbell J said this was the sense in which he would use
the word “repudiation” in his reasons. There may be cases where a failure to perform,
even if not a breach of an essential term (as to which more will be said), manifests
unwillingness or inability to perform in such circumstances that the other party is
entitled to conclude that the contract will not be performed substantially according to its
requirements. This overlapping between renunciation and failure of performance may
appear conceptually untidy, but unwillingness or inability to perform a contract often is
manifested most clearly by the conduct of a party when the time for performance arrives.
In contractual renunciation, actions may speak louder than words.”
[44] Whether a person has abandoned their employment is to be considered objectively, in
light of all the circumstances.20 It is unnecessary to show a subjective intention to repudiate.21
[45] In his oral evidence, prior to moving to Cairns, Mr Saltmere explained that upon
accepting and commencing his employment, his accommodation in Mount Isa had been
provided through his partner’s employment. However, his partner had been transferred to
Cairns in November 2023 and as such, her Mount Isa accommodation was no longer available.
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It was at this point that Mr Saltmere made the decision to relocate to Cairns. Whilst not
specifically stated, I have presumed based on his conduct, that it was Mr Saltmere’s intention
at this time to find new accommodation in Mount Isa so that he could return to work.
[46] During the hearing, I asked Mr Saltmere what he did to look for accommodation in
Mount Isa in order to return to work, he said that he made enquiries at some accommodations
such as caravan parks and hotels but was unable to secure accommodation as he found it to be
too expensive. When I asked Mr Saltmere what he considered to be expensive, he said that $700
was too expensive. I sought to clarify whether this was $700 a week, but Mr Saltmere was
unsure. I asked Mr Saltmere if he made any attempts to apply for rental properties, however Mr
Saltmere said that he did not. Mr Saltmere did not provide any evidence to support his assertion
that he could not find accommodation in Mount Isa, at most, his evidence indicated that he was
not able to find accommodation within his preferred price range.
[47] With respect to Mr Saltmere’s assertion that MIM were aware that he was seeking
flexible work arrangements, I asked Mr Saltmere whether he communicated any proposals to
MIM to arrange flexible work arrangements, he did not.
[48] From the material provided, and noting the lack of Mr Saltmere addressing the question
of whether he was dismissed, it appears quite clear to me that Mr Saltmere has abandoned his
employment, noting that he had not attended 28 shifts from 1 May 2024 to 20 June 2024 without
proper excuse or explanation.
[49] I accept MIM’s contention that they were not responsible for securing accommodation
for Mr Saltmere. Whilst I acknowledge Mr Saltmere found the accommodation in Mount Isa to
be expensive, his failure to make any real effort to apply for rentals or make real attempts to
return to Mount Isa infers an unwillingness or inability to substantially perform his obligations
under the employment contract. I further note the apparent lack of communication from Mr
Saltmere, in particular the lack of a response to MIM’s 20 June 2024 letter. As such I find Mr
Saltmere’s conduct would convey to a reasonable person in the situation of MIM, a renunciation
of the employment contract which MIM subsequently accepted, ending the employment
relationship.
[50] As such, Mr Saltmere’s conduct, in abandoning his employment consequently caused a
repudiation of the employment contract, which has brought the employment to an end so that
there has been no termination at the initiative of MIM.
Conclusion
[51] Having considered the above, Mr Saltmere has not been dismissed within the meaning
of the Act, the jurisdictional objection is upheld.
[52] As a result, the application is therefore dismissed.
[53] I Order accordingly.
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COMMISSIONER
Appearances:
C. Saltmere for himself
D. Kerr for the Respondent
N. Traves for the Respondent
S. Brosnan for the Respondent
S. Arsenic for the Respondent
Hearing details:
2024
Brisbane
14 November
Printed by authority of the Commonwealth Government Printer
PR781502
1 [2020] FCAFC 152.
2 DCB at pg. 6 – Non-attendance Letter.
3 DCB at pg. 7 – Abandonment of Employment Letter.
4 DCB at pg. 7 – Applicant Submission/Statement at 3.
5 Ibid at 6.
6 Ibid at pg. 9 – at 13.
7 DCB at pg. 23 to 24 – Respondent Submissions at 9.
8 DCB at pg. 28 – Witness Statement of Scott Ezzy at 6.
9 DCB at pg. 33 – Respondent Reply Submissions at 3.
10 DCB at pg. 26 – Witness Statement of Sarah Arsenic at 4.
11 Ibid at pg. 27 – at 7.
12 DCB at pg. 35 to 36 – Witness Statement of Mark Bull at 7.
13 Ibid.
14 DCB at pg. 33 – Respondent Reply Submissions at 6.
15 Ibid at pg. 34 – at 11.
16 Leanne Taprell v Mark Anthony John Boyle & Jenny Bouris [2023] FWC 1352, [44].
17 [2018] FWCFB 139.
18 [2010] FWA 2357, [29].
19 (2007) 233 CLR 115, [44].
EFA R W THE COMMISSION 10 AUSTRALIA THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1352.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb139.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa2357.htm
[2024] FWC 3221
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20 Elizabeth Blyth v Francis William Penhalluriack [2022] FWC 972, [66].
21 Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [32] – [41] and Fishlock v The Campaign Palace Pty Ltd (2013)
234 IR 1 at [126].
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc972.htm
