Company too quick to find abandonment

A worker had an unexplained three-day absence from work. The Company made no attempt to contact him but concluded that he had abandoned his employment. It then ended its support for the worker's temporary skill shortage visa application.

On being informed by the Department of Home Affairs that his visa had been denied the worker texted his employer to ask why, but received no reply.

In evidence before the Commission, the Company said that after employing the worker on a bridging visa last year, he had been absent for 41 days over a four-month period due to stress leave and a hand injury sustained at work. The worker had been involved in a workplace altercation during which a colleague tried to kick him. Having raised the matter with his manager and made a complaint to the police, the worker allegedly became highly agitated when he saw the colleague at work the next day and "demanded in an aggressive manner" that he be dismissed.

When told that no further action would be taken until it had been determined who was at fault, the worker left the workplace and visited his GP, who advised him to take stress leave.

Summarising the Company’s case, the Commissioner noted that the Company acknowledged that it had concluded that the worker had abandoned his employment and also that “…the business did not attempt to contact [the worker] after he had not turned up for a period of three days, and it did not believe there was any requirement for it to do so."

Commissioner Gregory said he was "not satisfied that it can be concluded that [the worker] has abandoned his employment on the basis that he has ceased to attend his place of employment without proper excuse or explanation".

The Commissioner observed that the Company missed some "obvious steps".

"Firstly, [in the interests of the health and safety of all of its employees] it could be expected that it would have carried out some form of investigation into the issue that arose at the worksite….

"Secondly, and perhaps most evidently it could be expected that [the Company] would have attempted to make contact with [the worker] to ascertain why he was not at work before coming to the seemingly premature conclusion that he had abandoned his employment.

"This would be a minimum expectation of any reasonable employer in the circumstances.”

The Commission found that the Company’s withdrawal of the visa application amounted to a dismissal and that "its actions in doing so were at the very least harsh and unreasonable".

Orry Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687 (15 March 2019)

Disclaimer: This summary is not legal advice and for more information on employment contract termination call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.