A large employer has lost an unfair dismissal case against an employee who was deemed to have abandoned his employment, but was unfairly dismissed when he received harsh treatment from the company due to his experience and medical situation.

It is a reminder the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.

The employee was terminated in May 2012 for allegedly being absent without authorisation. In 2009, he suffered a lower-back injury for which he made a successful claim, while in 2011 he reported an injury to his shoulder and neck, for which a claim was not received.

The employee was required to provide medical certificates explaining any absence. In 2012, the employer wrote to the employee saying it had not received any contact from him to explain a continued absence. The employee did not try to contact the company between April 30 and May 21, 2012, as he was unable to gain entry to the work site. He went on to say that he believed it was the company’s role to contact him after he had been absent for two days.

A critical issue in the matter was the term of the employer’s enterprise agreement, which dealt with abandonment of employment.

It provided that an employee who is absent from work for three consecutive working days without notifying the employer shall be assumed to have abandoned their employment. If within a further period of seven days the employee has not satisfied the employer that there was a reasonable excuse for their absence, then the employee shall be deemed to have abandoned their employment from the first day of absence.

Vice president Watson considered the relevant legal considerations and concluded it did not matter whether the relevant provisions governing the situation arose from a contract of employment or an enterprise agreement. They had the same status if they purport to regulate the circumstances of an abandonment of employment.

The clause in question was a two-step process. It provided 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 provided that if within a further period of seven days the employee has not satisfied the employer there was a reasonable excuse for the absence, they will be deemed to have abandoned their employment from the first day of absence. The vice president said:

I consider that the law is adequately stated in the Full Bench decision of Searle v Moly Mines Limited 1 (the Searle Case) (t)he 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.

Outcome

Commissioner Roberts found the employee had been employed for some time and, given his medical and financial situation, the decision to terminate his employment was harsh but not unjust or unreasonable.

The employer was ordered to pay the employee a total of eight weeks’ wages. The amount would have been higher, but the Commissioner said the employee’s conduct had reduced the total.

Lessons

The lessons to take away from this case are:

1. Check your contracts of employment to see if there is an abandonment clause. Ensure your contracts have this clause.

2. If you are seeking to utilise this clause, understand the clause does not effectively terminate employment. It is up to the employer to contact the employee to ascertain why they are absent and that they are not ill or injured or suffered some catastrophe.

3. Remember, an employee is not terminated simply by not coming to work. An employer needs to do something to terminate the relationship. It is up to the employer to accept the employee’s repudiation of contract.

4. Also keep in mind the terms of the Fair Work Act state a dismissal is unfair if it is harsh, unjust or unreasonable. It may be that the termination is harsh (but not unjust or unreasonable), unjust (but not harsh or unreasonable), or unreasonable (but not harsh or unjust). A dismissal may be harsh in its consequences for the personal and economic situation of the employee.