Neither employer nor employee at fault for employment ending due to imprisonment
The recent case of Muhammad Ali Qureshi v. Spotless Services Australia Limited [2023] FWC 2411 (Spotless) serves as a useful reminder that employers have the option to accept an employee’s repudiation when an employee abandons their employment, as opposed to proceeding with dismissal. The Fair Work Commission (FWC) reiterated that accepting a repudiation does not constitute a “dismissal” at the initiative of the employer, for the purpose of the unfair dismissal regime.
The FWC cited the Full Bench decision in NSW Trains v. James [2022] FWCFB 55 when describing the concept of repudiation. It is conduct which objectively “evinces an unwillingness or an inability to render substantial performance of [a] contract,” or an intention to no longer be bound by the contract by acting in a manner substantially inconsistent with a party’s obligations.
In Spotless, the applicant was employed by the respondent as a full-time security officer. Unbeknown to the respondent, the applicant was arrested and charged by South Australian police and remanded in custody for 23 days, before the charges were dropped and he was released. While in custody, the applicant was not allowed to access the internet or his mobile phone and was only able to speak with “nominated” people. As such, he was unable to contact his employer and notify them of the situation.
The respondent attempted to contact the applicant on each occasion he did not turn up for a rostered shift. After failing to attend five shifts, the applicant was sent a show cause letter, advising that his failure to report for work or explain his absence may be considered abandonment of employment, leading to the termination of his employment. When the applicant failed to respond and missed a sixth shift, the respondent notified him that his conduct constituted a repudiation of his employment contract, and that the respondent accepted his repudiation.
Following his release from custody, the applicant made multiple attempts to contact his former employer. However the respondent was unsympathetic to the applicant’s explanation and request for reinstatement. Rather than responding to the request, the respondent merely re-sent the previous letter that had notified the applicant that he had repudiated his employment.
No ‘dismissal’
The FWC upheld the respondent’s jurisdictional objection to the applicant’s unfair dismissal claim, finding that the respondent had discharged the onus of establishing that the applicant was not “dismissed” within the meaning of section 386(1)(a) of the Fair Work Act 2009 (Cth) (FW Act).
The FWC accepted that the applicant did not mean to miss work and that he made reasonable efforts when in remand to notify his employer. However, it found that the question of whether there has been repudiation of a contract of employment is determined objectively. It is unnecessary to show a subjective intention to repudiate. The failure to attend multiple rostered shifts without approval and without prior warning or timely explanation signified the applicant’s inability (although not intentional) to uphold substantial performance of the employment contract.
Deputy President Anderson commented that this was a “regrettable” and “fortuitously rare case,” as neither the employer nor the employee was at “fault” for the conclusion of the employment relationship. Whilst the respondent’s conduct in merely providing the applicant a copy of previously issued correspondence was found to be “harsh” by the FWC, this conduct occurred after the employment had already ceased. As a result, it was irrelevant to the merit of the applicant’s case.
Deputy President Anderson commented that it would be consistent with public policy for corrective services to ascertain whether a person taken into remand required assistance to inform their employer of their incarceration, noting the importance of employers making decisions about ending employment with “as accurate and timely information as possible.”
Implications and takeaways
The key takeaways for employers are:
- When a worker has repeatedly failed to attend work without explanation, an employer should:
- alert the employee to their obligation to attend for work
- take reasonable steps to ascertain why the employee has not attended for work
- provide an opportunity (show cause) for the employee to explain their absence
- subsequently, if the employer reasonably forms the view that the employee has abandoned their employment and elects to accept the repudiation, the employer should notify the employee of the acceptance of the repudiation.
- Acceptance of repudiation does not constitute “dismissal” at the initiative of the employer for the purpose of the unfair dismissal protections under the FW Act
- It is unnecessary to prove that an employee subjectively intended to abandon their employment.
For Queensland public sector entities, section 145 of the Public Sector Act 2022 (Qld) expressly preserves a chief executive’s common law right to terminate a public sector employee’s employment, including for repudiation through abandonment of employment. While the specific facts of this case are unique and, in the words of Deputy President Anderson “regrettable,” it provides an example of the process by which an employer may elect to accept an employee’s repudiation of their employment.
Lara Hues is a special counsel specialising in workplace relations and safety at Holding Redlich in Brisbane. James Sofianos is a graduate at Holding Redlich in Brisbane.
