Dec 1486/98 M Print Q9605

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

Barolo

and

Centra Hotel Melbourne

(U No. 33514 of 1998)

COMMISSIONER WHELAN

MELBOURNE, 10 DECEMBER 1998

Jurisdiction - remuneration.

DECISION

In this matter Mr Barolo, the applicant, has lodged an application under section 170CE. The respondent has objected to the Commission accepting the application on the basis that it has been lodged out of time. The applicant was represented by Ms Rizza, solicitor and the respondent by Ms Stonier of the Australian Hotels Association (AHA).

The applicant gave evidence and Ms Phillips gave evidence for the respondent.

Background

Mr Barolo is an electrician who was employed in the maintenance department of the respondent business. In about November 1997 he discussed with the maintenance manager his intention to go overseas. His initial intention was to attempt to work overseas and stay for an indefinite period. This changed, however, to going for four or five months. It was Mr Barolo's evidence that Mr Klunyk (the maintenance manager) had initially been concerned that he would not get that amount of time off but told him that he would speak to management about it. He later came back to the applicant

Mr Barolo says that on the basis of this he booked and paid for his trip on 15 December 1997. His colleagues in the maintenance department and other employees of the hotel were aware of his holiday plans. He showed his holiday itinerary to Mr Klunyk and other employees in the maintenance department. The itinerary shows a departure date of 6 May 1998 and a return date of 12 October 1998.

The applicant submitted a leave application but only included on it the two weeks paid leave he had owing to him. He knew that the major part of his leave would be unpaid. He understood when he left work on 1 May 1998 that he would be returning to his job on his return from overseas. While his ticket stated a return date of 12 October 1998 this could be changed and he was scheduled to return in late August or early September.

While he was away he spoke regularly to his mother in Adelaide and to his girlfriend every three or four days. Early in July his girlfriend told him that she had spoken to some of his friends from work and Mr Klunyk was concerned that he had not arrived back at work. She advised him to call and find out what was going on. Sometime between 4 and 9 July 1998 he rang work but was told that Mr Klunyk was away. He spoke to a fellow employee, Mr Siwek, and told him that he did not understand what was going on as he had arranged to go away for four months.

On or about 17 July 1998 he called work again and asked for Mr Klunyk to call him. He was telephoned by Mr Klunyk who told him that because he had not returned to work his employment had been terminated. The applicant told him that he did not understand because he thought Mr Klunyk knew he was going away for four months. Mr Klunyk said that there was obviously a mix up in communications and he should ring Mr Southby (Executive Assistant Manager of the hotel).

Mr Barolo rang Mr Southby about a week later. He did not understand why Mr Barolo was not back when he should have been. He suggested that Mr Barolo finish his trip and give him a call and come to see when he got back, and

Mr Barolo arrived back in Australia on 26 August. He arrived in Melbourne on 30 August and rang the hotel on 1 September 1998. Mr Southby told him not to bother about coming to see him and explained that his employment had been terminated and his position was no longer available. Mr Barolo stated that this was when he officially knew he did not have a job. A number of days later he was speaking to a friend who advised him to take it further. At that point he was not sure if he was going to do anything. On 10 or 11 September he rang McDonald Murholme who advised that he could lodge a claim.

Mr Barolo identified a letter dated 17 July 1998 and which was addressed to him at an address in Adelaide. He identified the address as that of his ex-wife which he had given to the company to forward his group certificate to as he and his ex-wife used the same accountant. He believed that his ex-wife had forwarded the letter to his mother in Adelaide who had sent it on to his girlfriend in Melbourne. He first saw the letter on 30 August 1998.

In cross-examination Mr Barolo denied that he was aware that he was expected to return to work on 6 July 1998. He agreed that in his conversation with Mr Southby on 27 July he was told that his employment had been terminated because of his failure to return to work on that date. He knew from speaking to Mr Klunyk that officially he no longer had a job. He believed that Mr Southby had invited him to call on his return in case Centra had changed their minds or could do something for him. He agreed that he knew on 27 July that as far as the hotel was concerned his employment had been terminated. He was under the impression, however, that he was going to get his job back. He assumed this although he agreed that Mr Southby did not give him any encouragement to believe this.

Mr Barolo stated that he only went on holiday, he did not want to leave his job. He was not aware of the hotel's policy on unpaid leave. He knew paid annual leave was four weeks. He assumed that management would have to approve leave in excess of that. Mr Barolo stated that he gave no firm return date and that according to Mr Klunyk this was accepted.

Mr Barolo stated that may be he assumed too much from his conversation with Mr Southby on 27 July. He assumed that because of his previous two years, the hotel would see him as being a worthwhile person and he would get his job back. In his conversation with Mr Klunyk on 17 July he explained that he could not understand why he was expected back. Mr Klunyk told him that management had made their decision and it was pretty final. He did not feel he could do anything to try to challenge this from America. He accepted the decision but with a bit of reservation. He did not try writing to the hotel.

Mr Barolo agreed that neither Mr Klunyk nor Mr Southby in his telephone conversations with them told him he would get his job back on his return to Melbourne.

Ms Phillips is the human resource manager for the respondent. She was aware of the annual leave application made by Mr Barolo. It was discussed by Mr Klunyk and Mr Southby and in discussion with her it was agreed that two months would be the maximum time he could be granted leave. Of this, 14 days was paid leave for which Mr Barolo made an application and this was approved. Ms Phillips could not recall anyone being granted leave in excess of eight weeks by the hotel. The applicant's manager, Mr Klunyk had authority to grant annual leave but had to go to management if the leave was in excess of the normal contractual entitlement. It was left up to Mr Klunyk to relay to the applicant that he could take off a total of two months.

After 6 July she became aware that Mr Barolo had not returned to work. She became aware that he had spoken to Mr Siwek and the message was that he was taking another month off. They contacted his girlfriend who said she was not sure when he was returning. Having attempted to contact him at the address he had left them, the letter of 17 July was sent. After this she had no further contact with the applicant. She was aware that he had telephoned Mr Southby on 27 July 1998. She was not aware of his phone call with Mr Klunyk on 17 July 1998. From her conversation with Mr Southby she understood that the applicant was aware that his employment has been terminated.

Ms Phillips was also advised by Mr Southby that the applicant had telephoned him on 1 September 1998 to see if there was any work available and was told there was nothing at that stage.

Ms Phillips stated that she had never seen the applicant's itinerary and had never been present at any conversations involving the applicant and Mr Klunyk. She was aware that the applicant had made attempts to contact the company and had spoken to Mr Siwek and at a later date to Mr Southby.

The submissions

Ms Rizza submitted that there were a number of possible dates on which it could it be said that the applicant's employment was terminated. She referred to 6 July 1998, 16 or 17 July 1998 and 1 September 1998. She referred the Commission to the case of Kornicki v Telstra Network Technology Group [Print P3168] and submitted that there were parallels between the situation of Mr Kornicki and that of Mr Barolo. In particular, she referred to the fact that Mr Kornicki thought he had permission from his employer to take the leave when he went overseas and was dismissed before he returned to Australia.

Ms Rizza referred to the evidence Mr Barolo had given of his conversations with Mr Klunyk and to the fact that neither Mr Klunyk nor Mr Southby had been called to give evidence. Mr Barolo, when he left to go overseas, thought a four or five month absence was acceptable to the employer. Although Mr Klunyk did tell him on 16 or 17 July that his employment had been terminated he also told him to speak to Mr Southby. When he did speak to Mr Southby he was told to call when he returned to Australia. It was not until he spoke to Mr Southby on 1 September 1998 that he was told there was no point discussing it, his employment was terminated. He was getting mixed messages from the employer and the Commission should exercise its discretion in his favour.

Ms Stonier submitted that there were several possible dates on which it might be said the employment was terminated including 17 July 1998 when the letter of termination was sent to the last address given to the employer by the applicant. It is quite clear, however, that the applicant knew as early as 16 July 1998 when he spoke to Mr Klunyk that his employment had been terminated. At no stage in his conversations with Mr Klunyk or Mr Southby did he insist that he was on annual leave. He accepted that his employment had been terminated. He hoped, and possibly expected, that he would get his job back but he knew that he was dismissed.

The applicant was aware that Mr Klunyk could not authorise annual leave beyond what was owing to him and he was aware that the decision had to go to management. Their decision was not something vague like take four or five months leave. It was that his date of return to work was 6 July 1998. If Mr Klunyk gave the applicant any indication of something else he was not authorised to do so.

He knew in July that his employment had been terminated. He did not bother to write challenging this. It took some friend several months later to suggest that he might do something about it. It was not that he challenged so much the hotel's actions but that he was disappointed that he did not get his job back.

Conclusions

In determining the facts in this matter the Commission has been hampered by the lack of any written material relating to the application for unpaid leave or the decision by management to grant the applicant a period of a total of eight weeks paid and unpaid leave only. There was, in addition, no oral evidence that this decision was communicated to the applicant. Against this I find it hard to accept that a business could grant a period of indeterminate leave to an employee and that Mr Barolo could have gone on leave believing that there was no date specified by which he was expected to return to work.

Whatever Mr Barolo's belief, however, it is clear from the evidence that:

1) On 17 July 1998 Mr Barolo was aware from his conversation with Mr Klunyk that his employment had been terminated.

2) On 27 July 1998 Mr Barolo from speaking to Mr Southby was clear that his employment had been terminated by the hotel. While he hoped to obtain his job back he was not encouraged by Mr Southby to assume this.

3) It was clear to Mr Barolo on 1 September 1998 that he was not going to get his job back.

4) He spoke to a friend "a number of days" later but was still not sure that he was going to do anything.

5) The decision to contest the termination of his employment was not made until after he spoke to lawyers on 11 September 1998

Section 170CE(7) of the Workplace Relations Act 1996 requires that an application be lodged within 21 days "after the date on which the termination took effect". It does not refer to the date on which written notice was received and I reject the submission that it was not until he received the letter, dated 17 July but not received by him until 30 August that the termination took effect. The effective date has to be decided in a practical and commonsense manner (see Brown v Southall and Knight (1980) IRLR 130 EAT). If there was any doubt in Mr Barolo's mind that his employment was terminated on 17 July 1998 then after his conversation with Mr Southby on 27 July it was certainly quite clear.

Mr Barolo, unlike Mr Kornicki, did not write to his employer disputing the termination nor, again unlike Mr Kornicki, did he seek advice immediately on his return. Even after the suggestion was made that he might lodge a claim, he again hesitated.

Under all the circumstances I do not think that the delay in lodging this claim can be attributed to anything more than Mr Barolo's ambivalence about taking such an action and his vain hope that he might be offered his job back when he returned from his holiday overseas.

I am not able to say that his claim is totally without merit but any merit there might be in his claim that he was unaware that he was due to return to work on 6 July 1998 and believed himself to be on authorised leave is outweighed, in my view, by his actions after 27 July 1998 when it was quite clear that his employer did not share this belief and had made a definite decision to terminate his employment.

For these reasons I decline to exercise my discretion to accept this application out of time.

BY THE COMMISSION:

COMMISSIONER

Appearances:

A. Rizza for G. Barolo.

S. Stonier of the Australian Hotels Association for Centra Hotel Melbourne.

Hearing details:

1998.

Melbourne:

November 18.

Decision Summary

l

  

Termination of employment - unfair dismissal - jurisdiction - extension of time - applicant's employment terminated because of failure to return to work on specified date - applicant believed four to five month absence was authorised - respondent argued applicant aware of and accepted termination - assumed he would get job back on return from overseas holiday - Commission found hard to accept that employer could grant a period of indeterminate leave and that applicant believed no date specified for expected return to work - applicant did not dispute termination nor seek advice immediately on return - delay in lodging claim attributable to applicant's ambivalence about taking action and hope of being offered job back - application dismissed.

Barolo v Centra Hotel Melbourne

U No 33514 of 1998

Print Q9605

Whelan C

Melbourne

10 December 1998

Printed by authority of the Commonwealth Government Printer

<Price code C>

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