Eutiquio Romualdo v Rolen Communications Pty Ltd [1995] IRCA 301

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1866 of 1995 B E T W E E N : EUTIQUIO ROMUALDO Applicant AND ROLEN COMMUNICATIONS PTY LTD Respondent Before: Judicial Registrar Chancellor Place: Melbourne Date: 30 May 1995 REASONS FOR JUDGMENT (EX TEMPORE) (REVISED FROM TRANSCRIPT) This is an application pursuant to section 170EA of the Industrial Relations Act with respect to the alleged termination of the employment of Eutiquio Romualdo by Rolen Communications Pty Limited on 23 December 1994. The respondent's defence to the matter is on two grounds, firstly that the applicant lodged his application outside the 14 day period prescribed in section 170EA(3) and that time should not be extended, and secondly, that there was not a termination of employment by the respondent but rather an abandonment of his employment by the applicant. Evidence was given by Mr Romualdo and by Mr Philip Lee, a project manager employed by the respondent and the immediate supervisor of the applicant. The facts were generally not in dispute and I make the following findings. Mr Romualdo commenced employment with Rolen Communications on 30 November 1987. It seems agreed that he was generally a good worker for the company. On 13 October 1994 he was given approval for a period of annual leave from 4 November 1994 to 5 December 1994. It was Mr Romualdo's intention to travel to the Philippines during that period of time and he left Australia on 7 November 1994. He was supposed to return on 3 December, which was the date of booking with respect to his airline ticket. Unfortunately, on 2 December whilst in Manila he misplaced his bag which contained his passport, ticket and money. He made inquiries of the relevant taxi company, he advised Philippines Airlines of the problem and asked to be re-booked on to a flight soon after, and he also contacted the Australian Embassy in order to get a new passport. He was told that a birth certificate was required and found out that this would take some two weeks to obtain in Manila. He then made a decision, which in retrospect was probably not the best at the time, to go back to his home province in order to get a birth certificate. During those days on the second, third, fourth of December it is agreed that Mr Romualdo had the opportunity to telephone Australia but he did not do so. His evidence was that he was upset and probably not thinking clearly. Not only did he not ring his employer to advise of the problem but it appears that he also failed to telephone his wife, so I accept his evidence that he was not thinking particularly clearly at that time. He was caught in his home province for a considerable period of time due to weather problems and delays in getting the birth certificate. He was unable to get in contact with his employer or his wife because of the unavailability of telephone services. He returned to Manila late on 19 December and on 20 December he telephoned the respondent in a reverse charges telephone call to advise of his situation. Whilst he had been away the employer naturally became concerned at his absence. Mr Lee gave evidence that on 5 December he attempted to contact the applicant by way of mobile phone and similar attempts were made on the sixth, seventh and eighth of December. The applicant's wife rang the respondent's premises on 12 December and indicated that she was also looking for the applicant. It seems to me that the respondent should have been alerted to the fact that something a little unusual was taking place. In light of the applicant's non-attendance, Mr Lee had to re-assign tradesmen and eventually on about 15 December, some 10 days after Mr Romualdo was due to return, a meeting was held between Mr Lee, the Managing Director of the respondent, and one other project manager in which they reached a decision that the applicant had abandoned his employment and that he was no longer an employee of the company. At about that time they advertised for another person to take the applicant's position and it appears that they obtained a suitable employee within a very short period of time. At the time of the decision that Mr Romualdo had abandoned his employment the respondent had not had the opportunity to hear from him in relation to the matter. Mr Romualdo eventually returned to Australia on 23 December. He immediately rang the office and spoke to Philip Lee. He was advised that he was no longer an employee. I prefer Mr Lee's evidence in relation to the matter and it is likely that the applicant was told that he was no longer an employee because he had abandoned his employment and that another person had to be put on in the job. I accept Mr Lee's evidence that he did not say that Mr Romualdo had been sacked. Mr Romualdo attended work later on 23 December. At that stage Mr Lee asked him what his reason was for not returning to employment and he explained that he had lost his passport and wallet and that it was hard to find a phone in the Philippines. There was some problem with the cheque but eventually that was sorted out and Mr Romualdo was given a termination certificate or employee separation certificate on 5 January 1995. It gave the reason for termination as abandonment of employment - "after two weeks of the employee not returning or having any correspondence with the company from annual leave, replacement staff were hired". In about the second week of January the applicant contacted the Electrical Trades Union and spoke to Eddie Blanchfield about the circumstances of his cessation of employment. It appears that the ETU contacted the respondent who responded by letter dated 19 January 1995. The applicant gave evidence that he was told that the ETU would do something about it. He was told that an application for unlawful termination would be late, ie, outside the 14 days. After two or three days the applicant went back and asked what was happening. He was told that nothing could be done about it, it was too late. He said that he phoned on a couple of occasions but was told that the union could not help. He eventually spoke to a friend who put him on to the Equal Opportunity Board, who then referred him to Jobwatch, who sent him an Industrial Relations Court application. The application was then lodged with this court on 6 March 1995, some two months after the written notice of separation. In relation to the applicant's application for leave to extend the time for lodging the application, the principles to be applied are outlined in the case of Transport Workers Union of Australia and National Dairies Limited, a decision of Mr Justice Keely on 22 August 1994. He approved the criteria outlined by Mr Justice Wilcox as he then was in the Federal Court matter of Hunter Valley Developments Pty Limited and Cohen 1984 3 FCR 344. Matters that should be taken into account are the following: 1. The prima facie rule is that proceedings commenced outside the 14 day period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time. In my opinion the applicant in this case has provided an acceptable explanation of the delay. It appears that he contacted the union within a relatively short period of time after the termination and left it in their hands to take the prescribed action. Unfortunately, for whatever reason, they did not take the matter further on his behalf. It seems to me that it is fair and equitable that he be given the opportunity to be heard in relation to the matter. 2. What action the applicant may have taken to advise the respondent that there was some contest in relation to the termination. It is clear that the union had contacted the respondent so there was some awareness that there was an issue in relation to the matter. 3. Is there any prejudice to the respondent? In this particular case where the applicant is re-employed in other employment and there is really no question of reinstatement, it seems to me that there is no particular prejudice to the respondent, in particular given that the respondent was able to call whatever witnesses it deemed necessary. 4. General public concern. 5. The merits of the application. 6. Consideration of fairness as between the applicants and other persons otherwise in a like position. It seems to me that the applicant was not fully aware of his rights and made a range of inquiries in an attempt to pursue the matter and that it would be unfair in the circumstances not to allow him to be heard. I will therefore rule that the time for lodging the application be extended and that the application has been lodged within time. The question of abandonment is not an easy question given the problems that occurred in the respondent's business as a result of the applicant's failure to return to employment, but I adopt the words of Judicial Registrar Staindl in the matter of William Boyd v Godfrey Hirst Australia Pty Limited, in a decision of 30 January 1995 where he said: For an employee to abandon his/her employment it must be clear that the employee has evinced an intention to no longer be bound by the terms of the contract of employment. In my view there is no clear evidence of any such intention in the case of Mr Romualdo. It might be said that his behaviour was somewhat negligent in the sense that he ought to have telephoned on either the second, third or fourth of December when he had the opportunity, but I have accepted that he was very concerned and upset at that stage and in fact did not even manage to call his wife during that period of time. It appears that he did not do some of the things that he should have done, but in my view his inaction was not of such a reckless nature that it by inference evinced an intention to no longer be bound by the terms of the contract of employment. It is also my view that given that Mrs Romualdo had telephoned the respondent on 12 December expressing some concern as to her husband's whereabouts, that the respondent ought to have known that something a little unusual was taking place and that the decision on the part of the respondent that the applicant had effectively abandoned his employment was made somewhat prematurely. The respondent sought to rely upon the Metal Industry Award 1984 as outlining an acceptable industry standard in relation to abandonment of employment. That clause states: 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 shall be prima facie evidence that the employee has abandoned his employment, provided that if within a period of 14 days from his last attendance at work, or the date of his last absence in respect of which notification has been given, or consent has been granted, an employee has not established to the satisfaction of his employer that he was absent for reasonable cause, he shall be deemed to have abandoned his employment. I do not believe that a clause of that type can properly be read into the applicant's contract of employment given that it is not contained in the award that is relevant to him. I also note that 14 days is the period that is allowed in terms of a deemed abandonment, and it appears on the evidence of Mr Lee that the decision on behalf of the respondent in relation to abandonment was taken on about the tenth day. Therefore I do not see that the Metal Industry Award assists the respondent in relation to this matter. On the basis of those findings, I form the view that Mr Romualdo did not, as a matter of fact, abandon his employment. I find that the employer's action in making that decision for him effectively amounts to a termination of his employment and such termination took place formally on 23 December 1994. In the circumstances, where the decision was made before the applicant had an opportunity to explain the circumstances, and particularly in the case of a long standing employee, I find that the decision to terminate was harsh, unjust or unreasonable and in breach of section 170DE(2) of the Act. I believe it is appropriate to award compensation. The applicant's evidence is that he resumed alternate full-time employment, certainly by 5 March and I therefore find that reinstatement is impracticable. He also mentioned at other times that he had been in part-time employment since December. In view of the uncertainty over the period in which he has been employed, I propose to order that compensation in the sum of four weeks remuneration be paid by the respondent to the applicant. There will be an order that the respondent pay the applicant compensation in the sum of $2200. I will grant a stay of 21 days in relation to the payment. MINUTES OF ORDERS THE COURT ORDERS: 1. The Respondent pay the Applicant compensation in the sum of $2,200. There will be a stay of 21 days in relation to the payment. I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor. Associate: Dated: Applicant appeared in person Representative for the Respondent: Mr K. Cameron Employer Organisation: National Electrical Contractors Association Date of hearing: 30 May 1995 Date of judgment: 30 May 1995