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Perspective

“Abandonment of employment” while on sick leave

The test as to whether a worker has abandoned their employment is whether their conduct is such as to convey to a reasonable person in the situation of the employer a repudiation of the employment contract as a whole or the worker’s fundamental obligations under it. The repudiation entitles the employer to accept the employee’s repudiation of their employment contract. Although the employer needs to take action to terminate the contract, the employment relationship is deemed to have ended by the employer’s acceptance of the employee’s repudiation.

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In the case of Ah Shan v Shamrock Consultancy Pty Ltd [2020] FWC 5364 a worker was dismissed for purportedly abandoning her employment while she was on sick leave.

The worker displayed symptoms of COVID-19 and was ordered by her treating practitioner to isolate for one week as a precautionary measure.

Her employer had a policy in place requiring medical clearance by way of a negative test for COVID-19 before she could return to work. The worker made several attempts to get tested but was denied as she did not meet the screening criteria.

For the next two weeks, the worker and the National General Manager exchanged several text messages about the need for her to get tested and her unsuccessful attempts.

The worker stopped responding to the National General Managers text messages during the third week of her leave, which coincided with the Easter long weekend. She tried to phone back after Easter but the National General Manager’s phone was switched off. She then saw the termination letter in her email claiming she abandoned her employment. While she reached out to the National General Manager about her desire to return to work the termination stood.

Lessons for employers

  1. Lack of communication while an employee is on sick leave is not necessarily sufficient to demonstrate an abandonment of employment. It may be a sign there may be basis for concern about the worker’s welfare. The onus is on the employer to demonstrate it made every effort to communicate with the worker and the worker failed to respond.
  2. All worker’s must be given an opportunity to respond before any termination decision is made. It is a matter of procedural fairness. Had the National General Manager provided the worker with this opportunity, it is clear her response would have demonstrated her desire to return to work rather than a desire to abandon her employment.
  3. Where a COVID-19 testing regime is imposed by an organisation which requires a negative test and the worker is unable to be tested despite their attempts, as in the above case, it is arguable that the employer is obliged to pay the worker for any time they must take off work by reason of the requirement.

Written by Nes Demir

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Our team is here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas.

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