TERMINATION OF EMPLOYMENT – termination at initiative of employer – abandonment of employment – ss.136, 137, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission dismissed appellant’s unfair dismissal application – found appellant had abandoned his employment – grounds for appeal that Commission misapplied clause 21 of Manufacturing Award in concluding award operated to automatically terminate employment – submitted clause 21 not a permitted or required term of modern award – that contrary to s.136 FW Act and by reason of s.137, term has no effect – also submitted term objectionable because it required or permitted dismissal in contravention of s.352 – Full Bench persuaded appellant made out case of error on at least one of the bases underpinning first ground of appeal – held error of the type described in House v The King in that decision-maker acted on wrong principle – permission to appeal granted – clause 21 did not have effect of automatically terminating employment – an employee deemed to have abandoned employment within meaning of clause 21 does not mean employee’s employment was thereby at an end – employer must take additional step of terminating employment – employment continues if it does not do so – employment did not come to an end by operation of statute [Mahoney] – no automatic termination of appellant’s employment under clause 21 – conduct of employer reinforced fact that termination occurred on employer’s initiative – even if clause 21 operated in manner determined by Commission, it had no effect because clause 21 was neither permitted nor a required term of a modern award – term had no effect by virtue of s.137 – Full Bench did not accept submission of employer that term was ancillary or incidental to operation or Division 11 or that it supplemented national employment standards, pursuant to s.55(4) – provision in award which would operate to automatically terminate employment cannot reasonably be described as ancillary or incidental to operation of a provision which deals with obligations of an employer when employer seeks to terminate employee’s employment – found termination at employer’s initiative – jurisdictional objection of employer dismissed – appeal upheld – application remitted to O’Callaghan SDP for hearing and determination. Appeal by Bienias against decision of O’Callaghan SDP of 17 October 2016 [[2016] FWC 6624] re: Iplex Pipelines Australian P/L t/a Iplex Pipelines Australia
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