Andrew Douglas: Our main topic’s abandonment of employment. Abandonment of employment is where a person, through their actions as an employee, exhibits an intention to no longer be bound by the contract. And that’s called repudiation, but it became, and for that to happen, an employer must acknowledge your repudiatory conduct and accept it. That’s the law of repudiation. So an abandonment of employment used to sit in all enterprise agreements. If you didn’t report to work for three days, they could send out a letter. If you didn’t respond to the letter, they could accept your absence and failure to respond to the letter as a repudiation. You can’t get that clause through anymore in enterprise agreements because it’s not lawful, obviously.

Nina Hoang: And if it exists, it’s not valid. So you can’t use it.

Andrew Douglas: It’s not valid. So abandonment of employment has come up, we’ll talk about the most recent case, but it comes up in two circumstances commonly. One is in criminal, where someone’s arrested for a criminal act, and then it’s-

Nina Hoang: Say they go to jail.

Andrew Douglas: Go to jail, nobody knows about it. They send letters to home. Nobody responds ’cause they’re not there ’cause they’re in jail. And then they accept it, accept their absence, and that will always be accepted. And there’s some case law that Tom’s dug up on that for us, which is great. Same with medical ones where people disappear off because of a medical reason. They fail to disclose what it is. Same inquiries are made over a period of time. Nobody knows.

Nina Hoang: And also when people abscond as well. And that is genuine.

Andrew Douglas: Obviously one is where they just run away and we can’t find them. Okay, more of a problem in the old days before mobile phones, but, and Facebook, where you could see what they were doing .

Nina Hoang: All right, so I think the most recent case, which was really interesting is Alves and The Trustee for-

Andrew Douglas: Can I just say, I’ve tried to talk about five other cases. We’ve edited that out as well.

Nina Hoang: For T.C. Future Investment Unit Trust. And I think it’s a really important case because it shows that with abandonment cases, it’s not always people deliberately on either side trying to do the wrong thing, which we’ve seen a lot of cases where it’s an employer being like, “It’s three days. You’re out. That’s it.” But in this case, it was an employee who took sick leave, was hospitalised, had provided a medical certificate through her daughter, but they had trouble getting any more details. Like, they asked for more specific medical information.

The daughter said, “Look, we can’t really provide it yet,” and when they kept trying to contact her, she wasn’t responding. So they issued letters saying, “Can you please respond? Like, we need to know what to do with the job.” Didn’t hear anything for a month and eventually followed multiple processes to say that she’d abandoned her employment. And this was a general protections claim claiming that the reason for termination was due to her sick leave and stuff and turns out she was really badly hospitalised through very traumatic things, but the employer didn’t know about any of it. So it couldn’t have been a factor of their decision-making. And although it was really unfortunate what had happened to the employee, it was an abandonment of employment.

Andrew Douglas: Yeah, and it goes to state of mind because to accept repudiation, it’s your state of mind that’s critical. It’s a subjective test. So I think this is really important. What this case shows and actually all the other cases I tried to talk about before is when you think someone’s absconded, you think someone’s left, you have to make quite deliberate efforts to try and contact them. If you hear that something has happened, like, I believe he’s been locked up, then you do need to chase that down and try-

Nina Hoang: Yeah, you got to verify that it’s true.

Andrew Douglas: You got to verify those types of things. And if you don’t do that, you can’t sit there silently and pretend not to know and send out letters to a address where you know a person’s not and hope that that works.

Nina Hoang: Yeah, and you also have to make sure they are receiving your letters as well, because if they’re not even aware that you’re questioning their abandonment, then it’s not really a fair process either and that’s how it can fall apart too. So if they’re in jail, you have to contact the jail.

Andrew Douglas: All right, and that’s hard work, isn’t it? Because it takes a about 20 days or so to actually get through.

Nina Hoang: Yeah, so it can delay the process heaps.

Andrew Douglas: So why don’t we try the case study?

Nina Hoang: Okay. All right, so Edgar was a production worker. He worked rotating shifts over a 28-day cycle. His leading hand on day shift was Pollyanna. Pollyanna had known Edgar for most of his adult life. Edgar clearly suffered from some kind of mental health issue. He struggled with direct conversations, easily misunderstood what people said, and readily interpreted comments as personal criticism. He regularly used all his personal leave. Pollyanna was a friend of his mother’s and had seen Edgar at his worst. Edgar had run into trouble with authorities from time to time, partly because he self-medicated with cannabis and alcohol.

For him, it made the world feel less threatening, but it affected his behaviour towards others, often leading to aggression, abuse, and violence. Two months ago, Edgar attended the local pub for Friday night drinks after work. As the night wore on, his behaviour became increasingly bizarre. He got into heated arguments with other patrons on two occasions and then became involved in a physical altercation with his morning shift supervisor, causing an orbital fracture to the supervisor’s right eye. Police were called, but Edgar had already left the scene. Pollyanna later learned that he had been arrested for DUI and for the altercation that night. She spoke with his mother, who said Edgar was unlikely to get bail, but expected that a guilty plea would result in a suspended sentence.

Andrew Douglas: A knowledgeable woman.

Nina Hoang: The next day, Edgar’s mother advised that he had been released but had not returned home. She suspected he had gone to a psychiatric hospital. They wouldn’t tell her? That’s weird. Pollyanna tried to call him on his mobile, but it rang out. She then spoke to her boss, the day shift supervisor who Edgar had assaulted, and he instructed her to send a three-day letter stating that if Edgar did not make contact, it would be taken as abandonment of employment and acceptance of his repudiation. The letter was sent to his home address, which was his mother’s residence. His mother called and said she was trying to track him down. His lawyer had informed her that Edgar’s mental health condition was now florid and he had been placed under-

Andrew Douglas: Florid means wild, out of control, yeah.

Nina Hoang: Oh, okay. Placed under an order in a hospital, but could not disclose which one. She was beside herself. She had called every hospital, but due to privacy restrictions, they were unwilling to confirm his presence. She was working with the police to locate him. Three days later, a letter was sent to Edgar accepting his repudiation and terminating his employment. That’s crazy that she couldn’t get any information.

Andrew Douglas: Well, that’s not true. I just made it up.

Nina Hoang: Oh, okay.

Andrew Douglas: Sorry. But it was fun, wasn’t it? Was …

Nina Hoang: Was the injury to the supervisor-

Andrew Douglas: To the supervisor compensable under workers’ compensation law?

Nina Hoang: To the supervisor?

Andrew Douglas: Yeah, so this is out-

Nina Hoang: Oh, but it occurred out of work.

Andrew Douglas: Of work, but his supervisor-

Nina Hoang: But they knew each other.

Andrew Douglas: Was present. The supervisor was present. So the answer is it’s likely it would be compensable. If it was just work colleagues going out together drinking after work as a result of end of shift Friday night drinks, which it was, there is a high likelihood it would be accepted as compensable.

Nina Hoang: What if they went separately and bumped into each other there?

Andrew Douglas: Different. So remember Chung’s case, which talked about drinking and then falling over later in the night, and they said, “Well, there was an expectation that she would be out drinking?”

Nina Hoang: Yep. I see. So it’s the purpose of why you attended in the first place.

Andrew Douglas: That’s right. Yeah, so I think that’s it.

Nina Hoang: Okay. Edgar had grabbed a female work colleague by the breasts towards the end of the night at the pub. Geez. Could she bring a sexual harassment claim? What? Yeah. What?

Andrew Douglas: Well, none-

Nina Hoang: She could also file for assault.

Andrew Douglas: I know she could, but let’s just stay with the game.

Nina Hoang: Oh my gosh.

Andrew Douglas: So it’s interesting, when you look at the jurisdiction, workers’ compensation stretches outside of the workplace and hours a little bit, but sexual harassment discrimination stretches way out. So the jurisdiction within which is a workplace, I’m only raising this because it shows how different jurisdictions deal with misconduct.

Nina Hoang: But 100%, yeah, yeah.

Andrew Douglas: Yes, yeah.

Nina Hoang: It would be connected back to her.

Andrew Douglas: Did Edgar abandon his employment?

Nina Hoang: No.

Andrew Douglas: No.

Nina Hoang: No, they hadn’t done really anything to verify it, where he was, and he wasn’t aware, he hadn’t had an opportunity to respond and put forward his case or anything.

Andrew Douglas: Would Edgar have any claims under-

Nina Hoang: Wait, before we move on, can we just also say, with abandonment, in terms of imprisonment, it also depends on if they’re going to be locked up for a while or if they’re just-

Andrew Douglas: Short term.

Nina Hoang: Yeah, on bail or something like that. That is also factored in a lot of cases. So that’s why, in particular, you cannot say he’s abandoned it in this case.

Andrew Douglas: No, and, well, we don’t know about, if he’s going to be in a psychiatric hospital for two years, well, maybe that’d be different.

Nina Hoang: Yeah, or if it’s just for the weekend.

Andrew Douglas: Yeah.

Nina Hoang: Yeah. Would Edgar have any claims under the Fair Work Act or discrimination law around his termination.

Andrew Douglas: Now, I reckon this is a good question.

Nina Hoang: Yeah.

Andrew Douglas: Okay, he’s got a mental health issue.

Nina Hoang: He’s got a, yeah.

Andrew Douglas: It’s well known. His mental health issue was aided by consumption of alcohol in the-

Nina Hoang: Yeah, but that’s not a defence.

Andrew Douglas: No, no, no, we’re not talking about defence. We’re talking about a claim. So he’s got a mental health issue. They know that he’s out of control. They’ve terminated him for abandonment, not misconduct.

Nina Hoang: Oh, okay. I see.

Andrew Douglas: Yeah.

Nina Hoang: I thought you meant for the misconduct.

Andrew Douglas: No, no, but that’s why, so what he’d say is, “Look, if you’re going to terminate me for misconduct, I probably don’t have one. But you didn’t. You terminated me because I abandoned, and you did that because you know I’ve got a mental health issue and I can’t be at work because I’ve got a mental health issue.”

Nina Hoang: That does seem like a bit of a stretch though, because I think if he went for general protections, he’d be in trouble ’cause around, it’s not about the process, right? It’s whether they terminated him because of his condition.

Andrew Douglas: No, but they did. They terminated him ’cause they were aware at that, that they might’ve called it a abandonment, but they were, well, it’s probably ’cause he punched him in the head is the truth of it.

Nina Hoang: Yeah, that’s exactly why, which is the misconduct.

Andrew Douglas: He’s not going to say that. What he is going to say is, “Well, I did know that he was in hospital and he couldn’t come back to work. He was in a hospital somewhere and he couldn’t come back to work.” So it was about his mental health. I reckon he’s got a good claim. Interesting. You can see neither of us are plaintiff voice, so we wouldn’t know. And then you did something, then you did something very bizarre with the screen. What’s going on there? What’s question five?

Nina Hoang: Were there any safety law concerns around the Friday night drinks at the pub? As in like-

Andrew Douglas: Okay, so, question. So remember I said jurisdiction, workers’ compensation can be outside of work.

Nina Hoang: Yeah.

Andrew Douglas: Sexual harassment, definitely well outside of work. Safety law, safety law is a bit more cautious about where the jurisdiction finishes.

Nina Hoang: As in, your question is whether safety law could apply.

Andrew Douglas: Yeah, could apply.

Nina Hoang: I see, I see.

Andrew Douglas: So I think that safety law could well apply, but it would be a difficult argument and very unlikely to be prosecuted.

Nina Hoang: But it’s a private establishment.

Andrew Douglas: No, no, ’cause once you say it’s an out of, it’s a condoned out of hours conduct where people at work were attending.

Nina Hoang: But how can you set controls to limit that if you, like, it’s not a work function or anything-

Andrew Douglas: No, no, no.

Nina Hoang: Where people have organised and, you know, you have to do risk assessments and stuff. If I choose to go out with my colleagues.

Andrew Douglas: If you’re a supervisor and you choose to go out with your colleagues?

Nina Hoang: Yeah, but so you’re saying I’d have to set controls in place? Like, that seems a bit of a stretch.

Andrew Douglas: Yeah, I just raise it because I don’t think safety law does apply, but I don’t think-

Nina Hoang: I feel like the regulator would be hard pressed to bring a case.

Andrew Douglas: But I can imagine a regulator wanting to.

Nina Hoang: Yeah, but not .

Andrew Douglas: So I guess my point is, I’ve given you an extreme example, okay. Bring it a little bit closer to home. Bring it 10 minutes after work.

Nina Hoang: Yeah.

Andrew Douglas: Bring it a set of drinks where you all go round, you know, you all go up upstairs to a nearby function area and sit down together to talk about something, then have drinks afterwards, I think safety law is right in there with you. So I just wanted to show you, there are these different jurisdictional levels of penetration as to when you are a worker and covered by it. Safety law retreats from where workers’ comp is. Sexual harassment is right out there and very open about it. So you’ve got to understand there’s a high level of nuance that exists in how different areas of law apply to the same incident. But a fun thing, and maybe we should read more thoroughly next time.

Nina Hoang: Yeah, and concentrate on reading the screen.

Andrew Douglas: You think I should read the screen?

Nina Hoang: Yeah. Thanks for joining us on a-

Andrew Douglas: It would be good if I wasn’t blind.

Nina Hoang: Very interesting “Friday Workplace Briefing.”

Andrew Douglas: Tumultuous really.

Nina Hoang: Chaotic. Join us next week and give us a thumbs up.

Andrew Douglas: Please give us a thumbs up.

Nina Hoang: Bye.

Andrew Douglas: Bye-bye.