Some employers may find themselves in the situation where an employee does not show up for work for a period of time without notice or communication about their absence – never to be heard again.

How should the employer react? Especially when it appears that the employee has given up his job and ended the employment relationship.

In a recent decision, the Fair Work Commission (FWC) considered an employee’s request for wrongful dismissal in circumstances where the employer determined that the employee had quit his job while claiming to be on stress leave certified.

The employee was employed as a welder and his job was sponsored by the employer under a temporary skills shortage visa. On June 21, 2018, the employee was involved in an altercation with a colleague. The employee reported the incident to his manager and left the job site on the grounds that he did not feel safe to continue working with this colleague. He also reported the incident to local police.

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

While the employee was absent from work, he received a notification from the Home Office that his visa application could not be approved because his employer had withdrawn his appointment. The employee then texted the employer asking what had happened, to which he received no response.

The employee filed an unfair dismissal claim alleging that the employer’s withdrawal of sponsorship assistance was, in fact, a dismissal because he could not work without a visa.

In the proceedings, the employer denied firing the employee from his job, arguing that he had not heard from the employee after the incident with his coworker. He found that the employee was absent from work for three days without approval and without any notice of absence, he had quit his job. As a result, the employer decided to withdraw his visa appointment from the employee.

The employer claimed that he only received the employee’s medical certificate after contacting them about the denial of his visa.

The CC had to first examine whether the employee had been dismissed by the employer or whether he had given up his job, in which case there would be no dismissal.

The FWC adopted the approach set out by the Plenary House in its review of dropping employment clauses in modern terms as part of the quadrennial review of modern terms. The FWC reviewed 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 quit their job and then decided to withdraw his appointment of the employee for the visa. The employer also admitted that it made no attempt to contact the employee during the three-day period.

The FWC was not convinced that the employer could have concluded that the employee had quit his job without contacting the employee or attempting to contact the employee. He concluded that if the employer had contacted the employee, they would have discovered that the employee was suffering from stress and anxiety as a result of the workplace incident and that he was not fit. at work. The FWC ruled that the employee’s conduct was consistent with a person suffering from stress rather than an abandonment of employment.

The FWC also found that the employer could not conclude after only three days that the employee had quit his job. He said the employer expected “obvious steps” to be taken, such as contacting the employee about his absence and investigating the workplace incident.

Finding that the employee did not quit his job, the FWC ruled that there was no valid reason for termination and that the employee’s termination was severe, unfair and unreasonable. He ordered the employer to pay the employee $ 7,022.40 in compensation.

Lessons for Employers

In December 2018, the Plenary Chamber removed the abandonment clauses from modern sentences that included these clauses.

Although the circumstances vary, both the Plenary Chamber and the CC have made it clear when an employer suspects that an employee has abandoned their job, action must be taken by the employer before determining that there has been an abandonment. employment, including at a minimum contacting or attempting to contact the employee to find out why they are not at work.

It is also important for employers to remember that there is no fixed time frame (for example, three days) when an employee’s absence will be considered an abandonment of employment.

The information provided in this blog is not legal advice and should not be relied on as such. Workplace Law accepts no responsibility for any loss or damage resulting from reliance on the content of this blog or any links on this website to an external website.

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