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Why employee absence isn’t always what it 

seems...

Monday, 3rd November 2014, by Loran McDougall

In today's Workplace Bulletin:

• Case Law: Why you must take care when treating employees as having abandoned their employment

Dear Reader,

If an employee is absent from work without your authorisation, you might seek to assert that the employee has abandoned their employment.

Abandonment occurs when an employee has, by their conduct, brought their employment to an end without actually giving you notice to this effect. It’s bit like constructive dismissal in reverse (constructive dismissal is when an employee resigns because their employer says or does something that the employee can reasonably treat as dismissal, but the employer does not actually state that they have been dismissed).

A recent Fair Work Commission (FWC) decision highlights the high standard that applies for employers to claim an employee’s unauthorised absence from work is abandonment. In today’s bulletin, Charles Power gives you the details of the case.

Until next time,

Loran McDougall
Editor
Workplace Bulletin

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Case Law: Why you must take care when 

treating 

employees as having abandoned their 

employment

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Johnston v  Macquarie Technology Group International Pty Ltd (2014) concerned an employee who lived approximately 160 kilometres from Sydney with his family. The employee had been employed for 16 years working from home in a sales role. His wife gave birth to a son, who was born by an emergency caesarean 10 weeks premature at a Sydney hospital approximately 2.5 hours from the employee’s home.

The employee took 6 weeks’ approved annual leave to care for his four other dependent children while his wife was in hospital. Midway through his leave, the employee provided his employer with a letter from the hospital supporting a request for the annual leave to be taken as personal/carer’s leave. The letter said it was expected that the mother and child would remain in hospital in Sydney for a further 4 weeks after the employee’s leave expired. The employer did not respond to this request.

The employee did not return to work on the date his leave expired and did not contact the employer to discuss his absence. A few days later, the employer emailed the employee congratulating him on the birth of his new son and raising various matters regarding his unsatisfactory work performance, particularly relating to price lists supplied to customers.

The employee did not return to work until about 10 days after his approved leave ended. On return, the employee emailed the employer querying the pay he had received the previous day. The employer then sought to assert that the employee had abandoned his employment when he had not returned to work at the end of his approved leave.

The employer also disputed the employee’s entitlement to take paid personal/carer’s leave, as the circumstances relating to his wife’s hospitalisation did not amount to an unexpected emergency within the terms of the Fair Work Act 2009 (Cth) (FW Act).

The employee lodged an unfair dismissal claim. Here’s what the FWC found:

The employee was entitled to personal/carer’s leave

Section 97 of the FW Act entitles an employee to take paid personal/carer’s leave if the leave is taken to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:

• a personal illness or injury affecting the family or household member; or
• an unexpected emergency affecting the family or household member.

The FWC ruled that the employee was entitled to take personal/carer’s leave due to:

• the hospitalisation of his wife and premature baby in Sydney, some 2.5 hours drive from their home; and
• the need for the employee to provide the primary care for his other four young children (aged 2, 3, 4 and 13 years) during his wife’s hospitalisation. His children required his care because of an unexpected emergency affecting them, i.e. the prolonged hospitalisation of their mother, following the premature birth by caesarean.

The employee did not abandon his employment

The FWC also ruled that the employee’s employment with the employer was terminated at the employer’s initiative, and that the employee did not abandon his employment.

The employer argued that the employee had abandoned his employment when he:

• did not return to work after his approved leave expired; and
• failed to communicate with the employer during the period of leave or to make appropriate enquiries as to whether the request for personal/carer’s leave had been approved.

However, the FWC ruled that there was nothing about the employee’s conduct that indicated an intention to abandon his employment or to resign. The employee took approved annual leave and then relied upon the support letter from the hospital to seek to transfer that leave to personal/carer’s leave, which he had accrued.

The employer was aware of:

• the employee’s request  to take personal/carer’s leave;
• the circumstances in which such leave was sought; and
• the employee’s family circumstances, including that he had four children to care for at home.

The employer never told the employee that it rejected his request to transfer annual leave to personal leave or that it would treat the employee as having abandoned his employment if he did not return to work. To the contrary, the employer emailed the employee after his approved leave had ended about work matters. The claim of abandonment only arose after the employee returned to work and after he queried the pay received for that month.

The dismissal was unfair

The FWC ruled that the employee’s failure to return to work did not provide a “sound, defensible or well founded” reason for his dismissal, irrespective of whether the employee was entitled to be granted a period of personal/carer’s leave. This was because the employer was aware of:

• the circumstances surrounding the leave and the employee’s inability to attend work since early November 2013, as a result of his wife’s and newborn baby’s hospitalisation; and
• the request for personal leave and the advice from the hospital that the employee’s wife was likely to be hospitalised until 29 January 2014.

The employer did not contact the employee to enquire about his return date or to encourage an early return to work.

The FWC ruled the dismissal was unfair and ordered the employer to pay the employee 20 weeks’ pay.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

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