Injured worker didn't abandon employment

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Injured worker didn't abandon employment

An injured mine worker made it ‘perfectly clear’ to her employer that she was unfit for work and also provided medical certificates, FWA has ruled in finding she did not abandon her employment.

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An injured mine worker made it ‘perfectly clear’ to her employer that she was unfit for work and also provided medical certificates, FWA has ruled in finding she did not abandon her employment.
 
Employed by MCG Group Pty Ltd, the truck operator suffered an injury to her lower back at work in May 2009. A compensation claim was accepted.
 
During a return to work in suitable duties, she suffered a sequelae psychological injury, and was certified unfit for work from August.
 
Three other medical certificates were provided to MCG certifying her unfit for duties until November.
 
However, MCG claimed she had abandoned her employment, submitting she had refused to return to work in October; she had moved to Bundaberg during her alleged incapacity and that her psychological injury claim had been rejected.
 
Ample correspondence
 
Commissioner Ingrid Asbury found the worker had provided to MCG ample evidence that she was incapacitated, through a series of medical certificates and correspondence through her legal advisers.
 
‘Taylors (legal advisors) on behalf of Ms Sharpe (worker) corresponded with Winchester Maddern and Taylor (MCG advisors) making it perfectly clear that Ms Sharpe was claiming to be totally incapacitated for work and that she would continue to be so for the foreseeable future,’ Asbury said.
 
‘In short, Ms Sharpe provided an explanation for her absence, and notice to MCG and its legal advisors that the absence was likely to be of some duration.’
 
Asbury noted that the worker went to ‘some effort and expense’ to ensure that her legal representatives provided MCG with an explanation for her absence.
 
‘Thereby indicating that she intended to be bound by any obligation to inform MCG about the basis upon which she was absent from the workplace,’ Asbury said.
 
‘This conduct does not constitute abandonment of employment.’
 
Move and claim unrelated
 
The Commissioner also rejected MCG’s submissions that the move and the failed compensation claim were indicative of her intention to leave her job.
 
‘... whether or not MCG accepted that this incapacity was genuine, is not an issue that goes to the question of whether or not Ms Sharpe abandoned her employment,’ she said.
 
‘The fact that an employee who is totally incapacitated chooses to move to another location during the period of the incapacity, is not necessarily an indication that the employee is abandoning her employment.’
 
Asbury ruled the worker did not abandon her employment, and could therefore pursue an unfair dismissal claim against MCG.
 
 
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