No good in goodbye – employee on stress leave did not abandon employment

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence – never to be heard from again.

How the employer should respond? Particularly where it appears that the employee has abandoned their employment and has brought the employment relationship to an end.

In the recent decision in Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687, the Fair Work Commission (FWC) considered an employee’s unfair dismissal application in circumstances where the employer determined that the employee abandoned his employment while he claimed that he was on certified stress leave.

The employee was employed as a welder/metal fabricator and his employment was sponsored by the employer under a Temporary Skills Shortage Visa. On 21 June 2018, the employee was involved in an altercation with a colleague. The employee reported the incident to his manager and left the worksite on the basis that he did not feel safe to continue working with that colleague. He also reported the incident to the local police. 

The employee claimed that he was suffering from stress and anxiety as a result of the incident and consulted his general practitioner the next day. He was advised to take two weeks off and to return to work on 9 July 2018. The employee claimed that he submitted this medical certificate to his employer and also made a workers’ compensation claim relating to the incident.

While the employee was away from work, he received notification from the Department of Home Affairs that his visa application could not be approved because his employer had withdrawn its nomination. The employee then texted the employer to ask what had happened, to which he received no response.

The employee lodged an unfair dismissal application claiming that the employer’s withdrawal of its sponsorship support was, in effect, termination of his employment because he could not work without a visa.

In the proceedings, the employer denied that it had dismissed the employee from his employment, arguing that it had not heard from the employee after the incident with his colleague. It concluded that as the employee was absent from work for three days without approval and without any notification of his absence, he had abandoned his employment. As a result, the employer decided to withdraw its visa nomination of the employee.

The employer claimed that it did not receive the employee’s medical certificate until after he had made contact with them about the denial of his visa.

The FWC had to firstly consider whether the employee was dismissed by the employer, or if he had abandoned his employment, in which case there would be no dismissal.

The FWC adopted the approach set out by the Full Bench in its review of abandonment of employment clauses in modern awards as part of the 4-yearly review of modern awards (Abandonment of Employment [2018] FWCFB 139).

The FWC considered the evidence provided by the employer in which it admitted that after the employee did not make contact for three days, it concluded that the employee had abandoned his employment and then moved to withdraw its nomination of the employee for the visa. The employer also admitted that it did not make any attempt to contact the employee in the three-day period.

The FWC was not satisfied that the employer could have concluded that the employee had abandoned his employment without contacting the employee or attempting to contact the employee.  It found that if the employer had contacted the employee, it would have discovered that the employee was suffering from stress and anxiety as a result of the workplace incident and was not fit for work. The FWC considered that the employee’s conduct was consistent with someone suffering from stress rather than an abandonment of employment.

The FWC also found that the employer could not have concluded after only three days that the employee had abandoned his employment. It stated that there were “obvious steps” expected to be taken by the employer, such as contacting the employee about his absence and investigating the workplace incident.

Having found that the employee did not abandon his employment, the FWC held that there was not a valid reason for dismissal and the dismissal of the employee was harsh, unjust and unreasonable. It ordered the employer to pay $7,022.40 in compensation to the employee.

Lessons for employers

In December 2018, the Full Bench removed abandonment of employment clauses from those modern awards which included these clauses.

While circumstances will vary, both the Full Bench and the FWC have made it clear that where an employer suspects that an employee has abandoned their employment, steps must be taken by the employer before determining that there has been an abandonment of employment, including at a minimum, contacting or attempting to contact the employee about why they are not at work.

It is also important for employers to remember that there is no set timeframe (e.g. three days) where an employee’s absence will be taken to be an abandonment of employment.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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