Find out how Fair Work dealt with dismissal over a relocation requirement
In a recent decision, the Fair Work Commission (FWC) resolved the dispute of an employee who said his employer unfairly dismissed him because it alleged that he failed to relocate even though he was required.
The events in the case, which transpired during the onslaught of COVID-19, revolve around the employer’s claim that the employee “had renunciated his employment” by failing to relocate, but the employee’s circumstances alleged otherwise. Find out how the FWC navigated through this unique situation.
The employee worked as a general service operator with the employer’s offshore floating production, storage and offtake oil facility located off the coast of Western Australia (WA).
The employee was on a “fly in-fly out” basis with his usual place of residence in Queensland. When travel restrictions were imposed on entry into WA in March 2020 due to COVID-19, the employer directed its employees to relocate to WA.
Since the employee was an “exempt traveller,” relocation was not required, but the employer modified rostering requirements to reduce travel. In November 2020, the WA government introduced classification-based quarantine requirements for interstate travellers. The employer then further changed the roster to incorporate 2 weeks of quarantine.
The entry and quarantine requirements for travellers to WA fluctuated during 2021, with the employee being required to relocate interstate or enter WA at short notice.
In June 2021, the employee didn’t have any mobile phone reception when the entry classification for Queensland changed, and he was required to relocate interstate by a particular time to enter WA.
He was unaware of the said relocation requirement and failed to enter WA to start his quarantine period. He subsequently secured an entry pass to enter the state but could not commence the rostered shift until after the quarantine period.
The employer then sent a letter to the employee in July advising him of its intention to terminate his employment on the grounds of “frustration of contract” as it believed the employee had breached his contractual obligations by not being able to relocate to WA when he was required. Eventually, the employer abandoned the argument that the contract had been “frustrated” and instead argued that his employment “had been abandoned.”
Was the employer’s argument correct?
The FWC emphasised that “breach of contract,” “frustration of contract,” and “abandonment of contract” are “very different legal concepts.” It said that the employer’s act of “not identifying the ground” of the employee’s violation “until after his dismissal denied him the opportunity to respond properly.”
It clarified the definition of “abandonment of employment,” noting that:
“It 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.”
The FWC’s decision
The FWC considered many factors, including the contractual variations made by the employer, the reasonableness of its requests to relocate and the consequences of border restrictions preventing the employee from commencing the roster.
The employer claimed that the employee “had renunciated his employment” by failing to relocate to WA, but the FWC found that the employee’s conduct did not suggest any “intention to renunciate employment contract, to the contrary [he] had taken proactive steps to be able to attend rostered shifts.”
Thus, the FWC said there was no valid reason for his dismissal. It further explained that his employment was on a “fly in-fly out” basis, and the employer had not made it clear that failure to relocate would result in dismissal.
It also said that the employee was not notified or allowed to respond before the employer decided to terminate his employment. As a result, the FWC ordered the employee’s reinstatement and ordered to restore lost pay. The decision was handed down on 29 April.
