Termination of employment; abandoning employment

The Fair Work Commission publishes a quarterly practitioner update on its web site and it includes summaries of unfair dismissal cases (and others) which it regards as of interest to fair work practitioners.

Here is such a summary about an unfair dismissal case involving an assertion by the employer that there had been no dismissal because the employee had abandoned his employment.

“This application for unfair dismissal was lodged by a Canadian national who had been employed as a welder/metal fabricator. The applicant originally came to Australia on a temporary working holiday visa, which expired in April 2018. He then entered into an employment contract with Atlas Steel whereby it agreed to be his approved nominee for a Temporary Skill Shortage Visa.

On 21 June 2018 the applicant had an altercation with another employee. The following day the applicant left the workplace after encountering the same employee. The applicant went to his doctor who provided him with a certificate of capacity regarding a work-related injury/condition, which indicated that it was necessary for him to be off work until 5 July 2018. During this period the respondent concluded that the applicant had abandoned his employment, given his absence from work for a continuous period of more than three days, and consequently decided to withdraw its visa nomination.

The Commission considered the 4 yearly review of modern awards Full Bench decision for the Abandonment of Employment common issue. The Commission was not satisfied that the applicant abandoned his employment on the basis he ceased to attend his place of employment without a proper excuse or explanation. The Commission was satisfied that by withdrawing its visa nomination the respondent effectively acted to terminate applicant’s employment, and that its actions in doing so were harsh and unreasonable. The respondent made no attempt to contact the applicant after he left the workplace on 22 June 2018. The Commission found that the applicant was unfairly dismissed and ordered $7,022.40 compensation, less deduction of any tax as required by law.”

Thompson v Zadlea Pty Ltd tradbnd as Atlas steel (2019)FWC 1687