PR955673 PR955673 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief re termination of employment Shane Ashley Herth and Corum Investments Pty Ltd trading as Excelsior Hotel (U2004/5424) COMMISSIONER LARKIN SYDNEY, 18 FEBRUARY 2005 Termination of employment - termination at the initiative of the employer. [1] On 9 August 2004 Mr. Herth lodged an application pursuant to s.170CE (1) of the Act for relief in respect of the termination of his employment by his employer, the Excelsior Hotel, on 6 August 2004. The remedy sought by Mr. Herth was an amount in relation to remuneration lost and outstanding payments including notice of termination. [2] On 3 September 2004 Form R21 was lodged. On the form it was stated that the correct employer was Corum Investments Pty Limited. It was further stated that: "The employee was not terminated. The employee resigned without notice to the respondent." [3] On 13 October 2004 Senior Deputy President Hamberger issued a certificate under s.170CF and on 20 October 2004 Mr. Herth elected to proceed to arbitration. [4] Proceedings before me commenced on 7 December 2004 for the purpose of hearing the parties in relation to a summons sought by Mr. Herth. The employer objected to the production of part of the summons. The objections were dealt with on that day and the matter was listed for hearing on 13 December 2004. At the request of Mr. Herth, due to the availability of his witness, the matter was adjourned to 9 February 2005. [5] On 9 February 2005 Mr. Herth represented himself. Mr. Lewis, solicitor, appeared by leave on behalf of Corum Investments. The following witnesses were called to give evidence in the proceedings: On behalf of Mr. Herth. Mr. Herth the applicant. Mr. Nagy former employee of the Excelsior Hotel. Mr. McAuliffe employee of the Excelsior Hotel. On behalf of Corum Investments. Mr. Siltchenko Responsible for maintenance and general workings at the hotel. Mr. Sologub Manager of the Excelsior Hotel. Mr. Davidson Director of Corum Investments Pty Ltd. Mr. Pogrebinsky Director of Corum Investments Pty Ltd. THE CASE [6] Mr. Herth was employed from 24 June 2003 at the Excelsior Hotel as a casual. He was rostered to work Tuesday to Sunday. His position was that of Supervisor /Duty Manager. He was responsible for rostering staff, checking hours of staff on the wage sheet, working behind the bar, undertaking till counts, receipting money for accommodation, occasionally ordering stock and stock take. [7] An incident occurred at the hotel on Friday 6 August 2004 at approximately 8.00/8.30pm. The incident concerned a telephone discussion he, Mr. Herth, had with Mr. Siltchenko. After this discussion Mr. Herth left the hotel prior to the conclusion of his shift. Mr. Herth contended that this incident resulted in the termination of his employment by his employer. The employer contended that Mr. Herth abandoned his employment on Friday 6 August 2004. [8] Prior to the events on Friday 6 August 2004, there had been an incident on Wednesday 4 August 2004. On that occasion Mr. Siltchenko had contacted Mr. Pogrebinsky in relation to his, Mr. Siltchenko's, concerns associated with the operation of the till. Mr. Pogrebinsky came to the hotel later that night and spoke to Mr. Herth. Mr. Pogrebinsky's evidence was that he told Mr. Herth he was unhappy with the tills and the whole system. Mr. Pogrebinsky advised Mr. Herth " Your job is to put up rosters and make sure people come to work and collect the takings. If you can't make the tills balance then you can't deal with the money" 1 . Further, that he advised Mr. Herth that they would continue their conversation later and that Mr. Herth stated, " That's fine" 2 . Mr. Herth, in cross-examination, did not dispute that a discussion with Mr. Pogrebinsky did occur on 4 August 2004. [9] On the evening of Friday 6 August 2004 Mr. Herth was working at the hotel with Mr. Nagy. Mr. Siltchenko was at the hotel early in the evening. Mr. Sologub was on duty during the evening. At approximately 7.00/7.30pm Mr. Sologub rang Mr. Siltchenko with his concerns in relation to the recording of sales on the till. At approximately 8.30pm Mr. Siltchenko rang and spoke to Mr. Herth in relation to Mr. Sologub's concerns. Mr. Herth then left the hotel. At some point after leaving the hotel Mr. Herth forwarded the following text message to Mr. Siltchenko: "You cannot expect me to work when I get given accusations about sales and stealing. I have mentioned several times what I do when tills are down I say from the leftover. You don't even ask me about it all. U didnt even think of band drinks, dj drinks and door girl drinks that get put through at end. I am very disappointed as I have been accused twice this week. When I had to explain money in the safe to Igor. I will show you what is meant to be sat." 3 [10] On Saturday 7 August 2004 Mr. Herth returned to the hotel at approximately 12.00 noon/1.00pm. He returned his keys and delivered an envelope for the attention of Mr. Pogrebinsky. [11] On Monday 9 August 2004 Mr. Herth lodged his application under s.170CE (1) of the Act. CONSIDERATIONS [12] Section 170CE, for present purposes, states: "(1) Subject to subsections (5) and (5A), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: ..." [13] At the commencement of proceedings on 9 February 2005 I put to the parties my view that the issue for determination was whether or not there had been a termination of employment at the initiative of the employer. If I determined that this was the case then I would hear the parties on whether that termination was harsh, unjust or unreasonable. Both Mr. Herth and Mr. Lewis agreed with my view. [14] To ground the jurisdiction of the Commission to hear and determine his application, Mr. Herth must satisfy me that he was an employee whose employment was terminated by his employer. In this regard he must satisfy me that on 6 August 2004 his employer's action caused the termination of his employment and that he did not resign from his employment voluntarily. [15] I am not persuaded that this was indeed the case. [16] Mr. Siltchenko's affidavit 4 evidence, on the events of Friday 6 August 2004, was that at approximately 5.00pm/6.00pm he saw Mr. Herth serving customers with two or three sales being rung up but no prices appearing on the screen. He stated in his affidavit that he asked Mr. Sologub to keep an eye on the tills. He stated that at approximately 7.00pm/7.30pm, Mr. Sologub called him to advise that there was something wrong, as sales were not being rung up. Mr. Siltchenko then rang Mr. Pogrebinsky at his home and advised him of the situation. He stated that Mr. Pogrebinsky told him not to do anything and that he would ring back after he attended to family matters. Mr. Pogrebinsky's affidavit 5 evidence supports the evidence of Mr. Siltchenko on this point. [17] Mr. Siltchenko stated that at approximately 8.00pm Mr. Sologub called him again and said that there remained an issue with the sales recording on the till. Mr. Siltchenko then called Mr. Pogrebinsky, however, he could not get through to him. He, therefore, called the hotel and spoke to Mr. Herth. [18] Mr. Herth's version of the events, as outlined in his statement 6 , was that at 8.30pm he spoke to Mr. Siltchenko on the phone. He stated that Mr. Siltchenko said to him that he and Mr. Nagy had been watched on the security camera giving out drinks and not placing them through the till. He stated that this shocked him. Mr. Siltchenko then advised him that he had spoken to Mr. Pogrebinsky and that there would be a meeting on Saturday 7 August 2004 as it was an urgent matter and no matter what Mr. Herth said he would " be dealt with" . Mr. Siltchenko denied that he said to Mr. Herth that he would " be dealt with ". [19] Mr. Herth contended that his employer terminated his employment on Friday 6 August 2004 at 20.30 hours. Mr. Herth filed his statement with the application under s.170CE (1) on Monday 9 August 2004. That statement, for present purposes, stated: "At the time of 20.30 I had been told to speak to Greg (Siltchenko) on the phone, Greg had stated that I and Adam (Nagy) have been watched on the security camera giving out drinks, and not placing them through the till, I listened in a state of shock as he continued to say that he had spoken to the licensee Igor (Pogrebinsky) and that a meeting was to take place on Saturday as it was a Urgent matter and no matter what I say I was to be dealt with. I then progressed to state that if you believe I am stealing that is fine however your negligence in asking has now showed, you have not come to think that drinks go for free to band members, door girl, Dj's and the barbecue out back where it was being cooked with onions, so if Im being terminated then I shall leave now, and forward the message onto Adam of this matter, and he shall organise a time to see you. After collecting my belongings, I quietly organised some of my things and left calmly, I walked passed Alex (Sologub) whom did not say a word, I then once outside called Greg and said I have left and that when they feel free to contact me over this matter and prove to me that Im stealing I would be appreciated of this, I have yet to hear from them...3 days later." 7 [20] Mr. Herth submitted that the words "will be dealt with" meant to him that his employment had been terminated. Mr. Herth, in cross-examination, stated that the above was written three days after the alleged termination of his employment, "after he collected his thoughts." [21] Mr. Siltchenko denied the content of the conversation as outlined by Mr. Herth above. In his affidavit, Mr. Siltchenko stated that Mr. Sologub had telephoned him twice on Friday 6 August 2004, at approximately 7.00/7.30 pm and again at approximately 8.00 pm and advised that sales were not being rung up. His affidavit evidence 8 was that he called the hotel and spoke to Mr. Herth and said: "'Alex has called me. He has been watching the security camera screen. He says it looks like you are giving away drinks and not ringing them up. We need to speak with you tomorrow about this.' 9 [22] Mr. Siltchenko's evidence was that Mr. Herth replied " okay we can have a chat tomorrow...I never give away drinks. I am trying my best for the business ." To which he, Mr. Siltchenko, replied, " Okay, I trust you - but I am praying I am wrong ." [23] Mr. Siltchenko's evidence was that after he spoke to Mr. Herth on the telephone he, Mr. Siltchenko, received 3 separate text messages from Mr. Herth. The content of one such text message has been outlined above. Mr. Herth did not contest the fact that he sent this message to Mr. Siltchenko. [24] Mr. Herth's evidence was that after his telephone conversation with Mr. Siltchenko, he collected his belongings and left the hotel. Mr. Herth's evidence, as outlined in his statement, was that once outside the hotel he called Mr. Siltchenko and told him that he had left the hotel. Further, that when they felt free to contact him over the matter and prove to him that he had been stealing he "would be appreciated of this." Mr. Siltchenko, in cross-examination, denied that he and Mr. Herth had a second telephone conversation. [25] According to Mr. Sologub's affidavit, the events that occurred at approximately 8.15pm on Friday 6 August 2004 were as follows: "...I walked through the bar and saw Mr Herth speaking on his mobile phone. He then walked outside. About five minutes later Mr Herth came back into the hotel and went behind the bar. I saw him speak to be (sic) another employee, Adam Nagy, then walk out of the hotel. He did not return. At approximately 9 p.m. I was able to contact Mr Pogrebinksy on the telephone and told him that Mr Herth had left the hotel." 10 [26] Mr. Pogrebinsky's evidence was that at approximately 8.00pm he received a telephone call from Mr. Siltchenko. He stated that Mr. Siltchenko said: " Alex (Mr. Sologub) called me again. I tried to call you. I called Shane (Mr. Herth) and said we noticed you were not ringing up sales and we want to have a talk with you and get an explanation. We will make time with you tomorrow, but he then walked out". 11 [27] It is unclear to me who actually advised Mr. Pogrebinsky that Mr. Herth had left the hotel. Mr. Siltchenko does not refer to the above conversation in his evidence. Mr. Siltchenko, in cross-examination, stated that he called Mr. Pogrebinsky after he received Mr. Herth's text message 12 . Mr. Sologub's statement stated that "At approximately 9 p.m. I was able to contact Mr Pogrebinsky on the telephone and told him that Mr Herth had left the hotel" 13 . It was put to Mr. Pogrebinsky by Mr. Herth that there appeared to be discrepancies on this point to which Mr. Pogrebinsky replied that after putting his daughter to bed "I had one message after I came from bedroom that you left and I said, okay, I am on the way". 14 I doubt that any discrepancy on this point is determinative of the issue at hand. Regardless of how Mr. Pogrebinsky became aware of the situation at the hotel on the Friday night it was not disputed that Mr. Herth had indeed left the hotel. [28] Mr. Pogrebinsky stated that he attended the hotel and called Mr. Davidson in an attempt to get extra staff as the hotel was busy. In his evidence, in cross-examination, Mr. Pogrebinsky replied to a question put to him by Mr. Herth as follows: "That night, when I came, we had a bit of panic because you left in the middle of this night, leaving us with only two staff and I spent probably half an hour, 40 minutes with people, with boys, who is Lenny and Alex and I asked to recount and I said we will deal with it next week. My intention was when I am coming in Tuesday, I was guessing you would come back and continue working with us on Saturday and on Sunday or Monday, when you were next time on the roster. I never even follow when you were next time, you supposed to come back to pub, so when I came to pub on Tuesday, I open envelope and that was your letter and before I open envelope, which was Tuesday morning, already knew all the stories before, where you came to have a meeting which I never have a clue what time it is going to be held and you brought key and Lenny told me you brought resignation letter and everything else and you did not come for three days to work." 15 [29] In his statement 16 , Mr. Davidson stated that at approximately 10.00pm he received a call from Mr. Pogrebinsky who told him that the manager had run out and that they couldn't cope with the customers and could he, Mr. Davidson, obtain some temporary staff. Mr. Davidson stated that he advised Mr. Pogrebinsky that he, Mr. Davidson, would come in and help. [30] Mr. Herth did not deny that he left the hotel on Friday 6 August 2004 sometime after 8.00pm. In proceedings on 9 February 2005, Mr. Herth stated that in his conversation with Mr. Siltchenko on 6 August 2004, he, Mr. Herth, said: that he was not feeling well, that he was going home, that he was taking tonight off, that he needed time to collect his thoughts, that he could not work knowing that he was going to have the meeting on the next day and, that he would be turning up for the meeting. [31] I do not accept Mr. Herth's submission outlined above for the following reasons. [32] Prior to the proceedings on 9 February 2005, Mr. Herth had not outlined the above as being part of his discussion with Mr. Siltchenko on the night of 6 August 2004. Mr. Herth filed two documents with his application. One of the documents, referred to above, was his statement to the Commission dated 9 August 2004. In that statement, Mr. Herth, for present purposes, stated that he had been told that "no matter what I say I was to be dealt with" and that he, Mr. Herth, said "so if Im being terminated then I shall leave now..." 17 The second document was Mr. Herth's letter, dated 7 August 2004, addressed to the Excelsior Hotel for the attention of Mr. Pogrebinsky, and delivered to the hotel by Mr. Herth on Saturday 7 August 2004. The letter commenced "Given the termination of my employment, on the 6/8/04 at 20.30 via phone correspondence of the business partner Greg, I wish to place a list of unfulfilled terms that will need to be met." 18 The correspondence continues with a list of demands and further stated "I must mention that I am very disappointed with your decisions as I have done nothing but work tirelessly for your business with minimum time off, However yet again your miscommunication with your staff has let this happen. Perhaps as a suggestion you ask questions before presuming....Upon handing this letter to the licensee Igor Pogrebinsky, all items/keys owing to the Excelsior Hotel have been returned, with nothing owing to my acknowledgment. A letter of Separation can be sent to the above address." 19 [33] While in the letter to his employer of 7 August 2004 Mr. Herth referred to contact he stated he had with persons from the hotel on the night in question, stating that they had been told by the owners of the hotel that he, Mr. Herth, had been sacked, evidence was not adduced in support of the alleged statements and the respondent's witnesses denied such an event. [34] In proceedings before me on 7 December 2004, for the purpose of hearing the respondent's objection to part of a summons sought by Mr. Herth, the relevance of time sheets was addressed. On that occasion in support of the production of the documents, Mr. Herth said: "...that was just to prove that also on Fridays that I had also not been at the establishment because it wasn't the first time that I've left the establishment because it was a quiet night, so I would leave certain people in charge and I would just not work for the night, so me walking out on the Friday had no relevance." 20 "Yes, it was the time sheets to prove that I - walking out that night was not a first time occurrence. I've walked out on other nights because it has been a quiet night. I didn't just walk out of my job. That is why I need the other people's time sheets for." 21 "Well they are trying to say that I quit, or I walked out of the establishment that night. In regard to that I terminated my own employment when I didn't because I've walked out on other nights also." 22 [35] Nowhere in the material filed and submissions made, prior to the proceedings on 9 February 2004, does Mr. Herth state that he advised Mr. Siltchenko that he, Mr. Herth, was not feeling well, was going home, taking the night off, needed time to collect his thoughts and that he would be turning up the next day for a meeting. In my view, this was an afterthought on the part of Mr. Herth in an attempt to boost his argument that he did not resign from his employment with the hotel on 6 August 2004. [36] Mr. Nagy's evidence in relation to the events on Friday 6 August 2004 was that Mr. Herth stated to him that he was going outside to make a telephone call. He stated that Mr. Herth then returned and told him "I am going to go home and then you went home" 23 . After further questions from Mr. Herth, Mr. Nagy stated that Mr. Herth told him that there was to be a meeting with Greg (Mr. Siltchenko) the next day. Mr. Nagy was unsure whether he had been told that the meeting would be at 11.00am or 2.00pm. He stated that Mr. Herth told him, on Friday 6 August 2004, that he, Mr. Nagy, would be briefed about what the meeting was about after work. Mr. Nagy was an unsatisfactory witness. His evidence was, at times, contradictory. Unfortunately, I was left with the impression that he and Mr. Herth had collaborated on the evidence to be given during the proceedings before me. [37] I am not persuaded that the employer terminated Mr. Herth on Friday 6 August 2004. In my view, Mr. Herth was angry that his employer had raised with him the issue of ringing up sales on that night and decided that he would leave the hotel and his employment with the employer. Even if I accepted his evidence that Mr. Siltchenko said words to the effect that he, Mr. Herth, "was to be dealt with" , which I do not, these words of them self do not mean a termination of employment nor do they indicate a constructive dismissal in that Mr. Herth was left with no other alternative but to resign his employment. On the evidence of Mr. Siltchenko, he had told Mr. Herth "We need to speak to you tomorrow about this." 24 Even if these words could be interpreted as meaning that a meeting would be held on Saturday 7 August 2004 on the evidence before me I am not persuaded that Mr. Herth had any intention of attending any such meeting. [38] Mr. Davidson's evidence was that on Saturday 7 August 2004, at approximately 1.15 pm, Mr. Herth entered the hotel and placed his keys and an envelope on the bar and said; "Here are my keys". 25 His evidence, in cross-examination, was "What happened was that I came to the pub probably three minutes prior you (Mr. Herth) arriving there and when I walked down from the office, I saw Mr Herth coming through the front door and he put the keys on the bar with a letter" 26 . [39] Mr. Herth's evidence was that he arrived at the hotel on Saturday 7 August 2004 at approximately 12noon/1.00pm for the meeting, which he stated Mr. Siltchenko had referred to. He stated that Mr. Davidson told him that he, Mr. Davidson, did not know what was happening, did not know if Mr. Herth was working or not and that there was no meeting. Mr. Herth denied that the only words spoken by him to Mr. Davidson were "Here are my keys." Mr. McAuliffe, who was on duty in the bar on Saturday 7 August 2004, did not refer to any conversation between Mr. Davidson and Mr. Herth in the giving of his evidence. On this point I prefer the evidence of Mr. Davidson. [40] Mr. McAuliffe stated that prior to Mr. Herth's arrival at the hotel, Mr. Davidson told him that Mr. Herth no longer worked at the hotel. Mr. Davidson disputed Mr. McAuliffe's evidence of the conversation Mr. McAuliffe stated occurred between them. He stated that he did not speak to Mr. McAuliffe prior to Mr. Herth's arrival at the hotel. Mr. McAuliffe stated that Mr. Davidson then went upstairs after the discussion. Mr. Herth then came into the hotel. He stated that Mr. Herth either placed his keys and an envelope on the bar or handed them to him, Mr. McAuliffe. Mr. McAuliffe was not sure whether or not Mr. Davidson was present at this time. He stated that Mr. Herth then took some personal belongings and left. [41] In cross-examination Mr. Lewis put to Mr. McAuliffe that on the Saturday Mr. Herth had said "They accused me of taking money from customers and not ringing up the sales. I didn't do it. I am not happy, so I walked". Mr. McAuliffe replied to Mr. Lewis' question "That is pretty much true, yes, pretty close to the point, yes". 27 Mr. Herth, in cross-examination, denied that he said these words to Mr. McAuliffe. [42] I am not persuaded by Mr. Herth's evidence in relation to what he stated was his conversation with Mr. Davidson on the Saturday. Mr. McAuliffe's evidence does not support what Mr. Herth stated had occurred. In my view, the reason for Mr. Herth's visit to the hotel on the Saturday was to return his keys to his employer and deliver what in my view was his resignation letter. [43] Even if I accepted the evidence of Mr. McAuliffe in relation to what he stated Mr. Davidson had said to him on the Saturday, this of itself does not support the proposition that a termination at the initiative of the employer occurred. Whether or not Mr. Davidson stated to Mr. McAuliffe that Mr. Herth no longer worked at the hotel or whether or not he made mention of what Mr. McAuliffe was to do if Mr. Herth came onto the premises, this is not indicative of a termination of employment by the employer. Clearly Mr. Herth had left the hotel the night before prior to the conclusion of his shift and without permission of his employer. Given the actions of Mr. Herth on that night it would be, in my view, open to management of the hotel to presume, without something more, that he no longer wished to be employed at the hotel. [44] Furthermore, the letter Mr. Herth had written to his employer, prior to attending at the hotel on the Saturday, did not mention or indicate that Mr. Herth was expecting to attend any meeting in relation to the events on the Friday night. I do not accept Mr. Herth's evidence that he arrived at the hotel on Saturday 7 August 2004 for the purpose of attending a meeting. Mr. Siltchenko's evidence was that, while he stated to Mr. Herth during their telephone conversation that they could talk about the events of Friday night on Saturday, he did not mention a meeting or a time for any meeting. [45] Mr. Herth tendered Exhibit A3. This document, it was submitted, was a photocopy of a photo of the hotel roster for Monday 9 August to 15 August 2004. Neither Mr. Herth's or Mr. Nagy's name appears on this document. The evidence surrounding the circumstances of this alleged roster is completely unsatisfactory. Mr. Nagy's evidence in chief was that at approximately 9.00pm on 6 August 2004, after Mr. Herth had left the hotel, the owners came in, had a meeting upstairs and then spoke to staff in relation to shifts. He stated that "I only saw the roster after they did it...My name wasn't on the roster, so I had to ask the question, why my name wasn't on the roster". 28 Mr. Nagy then stated that he took the photo of the roster on his camera phone at approximately 5.00/5.30pm on Monday 9 August 2004. Later in his evidence, under cross-examination, he could not be sure when he took the photo. Further, he was not sure when he forwarded the photo to Mr. Herth. [46] Is Exhibit A3 relevant to the determination I must make in this matter? I think not. [47] No one in the proceedings could enlighten me as to who had compiled the document. All the respondent's witnesses disowned it. However, this is not to say that another person/manager of the hotel did not produce it, regardless of the hotel's computer programme. [48] For the purpose of the argument, let us assume for the moment that someone within the employ of the employer did compile this roster and that it is a valid roster. Even operating on this basis this does not take Mr. Herth where he wants to go. Mr. Herth had left in the middle of his Friday shift without permission of his employer. Further, he attended at the premises sometime on Saturday with his keys and an envelope addressed to Mr. Pogrebinsky and then left. Mr. Herth, on my understanding, was to work on the Saturday and Sunday evening. He did not attend for those shifts. It is not surprising that Mr. Herth's name did not appear on a roster commencing on Monday 9 August 2004. [49] Now, what was the situation in relation to Mr. Nagy? His name did not appear on the roster. However, on this document under " Friday, August 13, 2004 " and " Saturday, August 14, 2004 ", there appears beside the shift hours the notation "???" . Mr. Nagy acknowledged, in cross-examination, that on the Friday night in question, at the conclusion of the shift, he was asked if he would be attending for shift on Saturday 7 August 2004. He agreed with Mr. Lewis that his reply to the question was "I'll tell you later". Given Mr. Nagy's reply to his employer on 7 August 2004 in all probability the notation on the roster of " ??? " was to be Mr. Nagy, when and if he saw fit to advise his employer that he was available to work. Further, Mr. Nagy's evidence was that he did indeed work on Friday 13 and possibly Saturday 14 August 2004. [50] Exhibit A3 does not support the proposition that Mr. Herth's employment was terminated by his employer. [51] This matter comes down to the fact that Mr. Herth had a telephone discussion with Mr. Siltchenko during his shift at the hotel on Friday 6 August 2004. After that discussion he left the premises prior to the conclusion of his shift, which on his own submission "was a busy Friday night". 29 In his evidence, under cross-examination, he initially stated that he went home to collect his thoughts. After further questioning he stated that after leaving the hotel he went out with some friends. At approximately 9.00pm on that night he forwarded a text message to Mr. Siltchenko in which he stated, "You cannot expect me to work when I get given accusations about sales and stealing". 30 [52] Sometime during the Friday night or early on Saturday 7 August 2004 he composed a letter to his employer setting out a list of demands. He delivered that letter to the hotel with his keys on Saturday 7 August 2004. Mr. Herth did not attend for duty at the hotel on Saturday or Sunday. On Monday 9 August 2004 Mr. Herth lodged his application under s.170CE (1). I am satisfied that at no time did Mr. Herth attempt to speak to his employer regarding his future employment at the hotel. CONCLUSION [53] Having had regard to the evidence and submissions in this matter I am not persuaded that Mr. Herth's employment was terminated by his employer. In my view, Mr. Herth abandoned his employment at the hotel during his shift on Friday 6 August 2004 and on Saturday 7 August 2004 he submitted his letter of resignation along with his keys. [54] As I have found that there was not a termination of employment at the initiative of the employer the Commission does not have jurisdiction to hear and determine the matter. [55] The application is dismissed. BY THE COMMISSION: COMMISSIONER Appearances: Mr. S. Herth (the applicant). Mr. S. Lewis, with leave, on behalf of Corum Investments Pty Ltd trading as Excelsior Hotel. Hearing details: Return of summons 2004. Sydney: December 7 Arbitration 2005. Sydney: February 9. Printed by authority of the Commonwealth Government Printer <Price code C> 1 Exhibit R4 @ 7 2 Op. cit. 3 Exhibit R2 @ 9 and 11 4 Exhibit R2 5 Exhibit R4 @ 9 6 Exhibit A1 7 Exhibit A1 8 Exhibit R2 9 Ibid. @ 8 10 Exhibit R5 @ 7 to 9 11 Exhibit R4 @ 10 12 PN1174 13 Exhibit R5 @ 9. 14 PN1235 15 PN1244 16 Exhibit R1 17 Exhibit A1 18 Exhibit A2 19 Op. cit. 20 PN162 21 PN175 22 PN177 23 PN682 24 Exhibit R2 @ 8 25 Exhibit R1 @ 4 26 PN1078 27 PN955 - 956 28 PN695 - 696 29 PN333 30 Exhibit R3