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Unfairly Dismissed After Long Absence


Greg Arnold

The Fair Work Commission ruled that an employer unfairly dismissed an employee on the basis of abandonment of employment.

The Fair Work Commission (FWC) ruled that an employer unfairly dismissed an employee on the basis of abandonment of employment.

While the employee was receiving worker’s compensation payments in relation to an injury sustained at work, the employer claimed the factory process worker was very uncooperative throughout the return-to-work plan by not attending medical appointments and assessments.

Further, the employee declined to sign consent forms or provide any alternative times for missed appointments.

The employer dismissed the employee based on the employee’s behaviour, and the insurer’s clearance for the employee to return to work and suspension of worker’s compensation payments.

The employee, however, claims included medical assessments were booked when they had been endorsed as unfit to work, the return-to-work plan had not been finalised, and they had not been given a date to return to work.

It was found that the employer made contact with the employee regarding abandonment of employment and the employee’s response was that they wanted to return to work, but the employer ignored this and proceeded to dismiss the employee.

This action by the employer led the FWC to decide the dismissal was valid but unfair—it was valid due to the employee’s actions being interpreted as misconduct, but the dismissal was unfair due to the employer ignoring the employee’s intention to return to work and that the employer did not inform the employee the reason for the dismissal until after the dismissal took place.

No reinstatement or financial compensation was awarded in this case due to the validity of the employee’s misconduct during the return-to-work process and the fact that the employee would not have earned any money in the time it would have taken to determine the outcome of this case.

Lessons learnt from this case

There are a few procedural steps an employer must follow when terminating an employee for abandonment of employment, including ensuring the employee has not attempted to make contact in relation to intentions of returning to work, and ensuring all avenues of contact and attempts to contact them have been exhausted.

Termination of employment on the basis of abandonment can be a difficult issue to navigate without landing the company in hot water. If you need further advice in relation to managing long-term absences or abandonment of employment, contact us today!

Mrs Nada Hinic v Safety Assembly Moulding Pty Ltd [2023] FWC 1006 (28 April 2023, published 2 June 2023)

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