Abandonment of employment still required dismissal


Abandonment of employment still required dismissal

In a case where a labourer abandoned his employment, the FWC found that the employer was reasonable in proceeding to dismiss him. Abandonment of itself does not end the contract of employment because it is up to the employer whether to proceed to termination or to leave the contract of employment to continue.


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In a case where a labourer abandoned his employment, the FWC found that the employer was reasonable in proceeding to dismiss him. Abandonment of itself does not end the contract of employment because it is up to the employer whether to proceed to termination or to leave the contract of employment to continue. In this case, although the dismissal was fair, it was also harsh because of his long period of employment and his known medical problems. As a result, the employer was ordered to pay him eight weeks wages as compensation.

[Full text of this case: L v Inghams Enterprises Pty Ltd [2013] FWC 3447 (4 July 2013)]

Unauthorised absences and inadequate medical certificates

The labourer, L, had been employed by the same company since 1996. He suffered a low-back injury in 2009, for which the employer accepted his compensation claim. However, it did not accept a subsequent claim for a shoulder and neck injury in December 2011. L remained on light duties and had frequent absences from work.

In January 2012, the plant manager informed L that it was no longer reasonably practicable to provide him with alternative employment. He must provide medical certificates to support his continued absences and keep the employer informed of the status of his condition. L did not respond.

Later, the plant manager wrote to L saying that he must contact him within seven days or it would be presumed that he had abandoned his employment. A week or so later, he provided a medical certificate, but it did not mention what the plant manager had specifically asked for; namely an end date for the absence and a review date. Another certificate was provided at the end of April 2012, stating that the ,labourer was unfit for duties the previous day and that date of the certificate. As L had exhausted his long service leave and sick leave entitlements, the employer regarded him as absent from work without pay from 30 April 2012.

On 23 May 2012, the plant manager again asked L to contact him immediately, due to the inadequate medical certificates. He pointed out that according to the relevant enterprise agreement an ‘employee who is absent from work for 3 consecutive working days without notifying the employer shall be assumed to have abandoned their employment’.

Five days later, L provided another medical certificate stating he could do light duties without excessive lifting and repetitive movements of the left arm. However, the certificate did not state his period of incapacity.

He was then called to a meeting on 30 May 2012, which he attended with the support of union delegates. Because he could not adequately explain his absences or his failure to keep in contact with the employer, or indeed provide a medical certificate with the details requested, he was told that he was deemed to have abandoned his employment from 30 April 2012 and that his employment was terminated immediately. He was paid four weeks wages in lieu of notice. His employer relied upon his unauthorised absences as the reason for his termination.

L lodged an application with the Fair Work Commission alleging unfair termination of employment according to s394 of the Fair Work Act 2009.
Earlier ruling confirms dismissal required
Commissioner Roberts referred to earlier proceedings in this matter before Vice-President Watson, where the vice-president ruled that a dismissal took place:
‘It is argued on behalf of Inghams that the operation of that clause brought the employment of Mr L to an end at 30 April 2012, without the need for any action on behalf of Inghams. The AMIEU on behalf of Mr L argues that the clause does not have that automatic effect and that although employees may be liable for termination, a further action on behalf of Inghams is required in order to bring about a termination of employment …

I have considered the relevant legal considerations and the various authorities that have been referred to by the parties. In my view, it does not matter whether the relevant provisions governing this situation arise from a contract of employment or an enterprise agreement. They have the same status if they purport to regulate the circumstances of an abandonment of employment. The clause in question is a two-step clause. It provides firstly, that an employee will be assumed to have abandoned their employment if they are absent from work for three consecutive days, and then it provides that if within a further period of seven days the employee has not satisfied the employer that there was a reasonable excuse for the absence, they will be deemed to have abandoned their employment from the first day of absence.

Clauses of this nature have been considered on a number of occasions by this tribunal and its predecessors. I consider that the law is adequately stated in the Full Bench decision of Searle v Moly Mines Limited (the Searle Case),  (as applied in various other cases, including the case of Sharpe v MCG Group Pty Ltd (the Sharpe Case), a decision of Commissioner Asbury of 22 March 2010. The relevant law arising from those decisions is that an abandonment of employment does not in itself terminate the contract of employment or the employment relationship, that when an abandonment of employment occurs, the employer has an option of accepting a repudiation and bringing the employment relationship to an end or considering the reasons for the absence and allowing the employment relationship to remain on foot …

In other words, it [relevant clause] uses the language of “termination of contract of employment” by the employee within the contractual term rather than the terminology simply of “abandonment”. The Inghams Agreement clause does not use the terminology of “termination of employment”. It simply relates to abandonment of employment. The second limb of the clause relates to the date of abandonment rather than the date of termination or the deeming of the abandonment to be a termination as such …’
FWC awards compensation

The Commission concluded that the employer had correctly decided L had abandoned his employment. Although L had been given the plant manager’s mobile phone number, he had not rung him to explain his situation. He had made no contact with the employer between 30 April and 21 May 2012. The employer had been entitled to reach the conclusion that L had abandoned his employment. The employment had been terminated for a valid reason and the termination had been procedurally fair.

In spite of the valid reason for the termination, the Commission found that the employer could have granted the labourer more latitude because of his long period of employment and his known medical problems. As a result, although not unjust or unreasonable, the termination of his employment had been harsh.

There was no question of reinstatement and there was nothing to indicate that he was fit for normal duties anyway. The employer was ordered to pay L eight weeks wages as compensation for the harshness of the termination.
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