Can my employer claim I have abandoned my employment during a period of absence?

Can my employer claim I have abandoned my employment during a period of absence?

The recent case of Mathew Rowe v SA Trailer & Chassis Equip (SATC), [1] confirmed that failure to attend work, even over a prolonged and continuous period, does not automatically indicate abandonment of employment by the employee.

Mr Rowe alleged he was dismissed in contravention of section 365 of the Fair Work Act 2009 (Cth). Under the Fair Work Act, employees accessing General Protection provisions may be barred from doing so due to a jurisdictional objection. An example of a jurisdictional objection may be where an employee has not been dismissed but rather abandoned their employment. In this case, the employer, SATC, claimed that Mr Rowe abandoned his employment rather than being dismissed and raised a jurisdictional objection to his claim.

Mr Rowe attended work on 17 December 2020 and did not present again until 12 February 2021, when his employment ceased. Apart from SATC’s closure from 24 December 2020 to 4 January 2021, SATC contended that Mr Rowe failed to communicate the reason for his absence. However, Mr Rowe provided evidence of the contrary, including text messages sent to alert SATC of his absence. It was clear that SATC was aware of Mr Rowe’s obligation to care for his son, who suffers from attention deficit hyperactivity disorder, especially during school holidays or other times when his son is unable to attend school. 

Alongside his family obligations, SATC was aware through medical certificates of Mr Rowe’s medical issues, which impacted his ability to attend work.

Commissioner Platt applied the reasonable person test from Shamrock Consultancy Pty Ltd v Norma Ah San [2021] FWCFB 274, to determine whether it was reasonable for SATC to conclude Mr Rowe had evinced a willingness, or an inability, to substantially perform the obligations under his contract of employment. Commissioner Platt found that SATC’s prior knowledge of Mr Rowe’s difficulty attending work during school holidays, which concluded on 27 January 2021, and their failure to inquire on Mr Rowe’s status based on their prior knowledge of his medical issues, was unreasonable. As such, Mr Rowe’s actions did not amount to abandonment of his employment, and SATC had instead dismissed Mr Rowe from his employment. The matter was listed for further conciliation.

This case demonstrates the need to consider the relationship between employee and employer and the prior knowledge each party had of the employment arrangement. A five-week absence from work, which was not explicitly explained, may arguably be enough to justify an abandonment of employment under ordinary circumstances. However, the Commission considered the employer’s prior knowledge of the employee’s medical issues and carer’s obligations, as a sufficiently reasonable explanation for the absence.

[1] Mathew Rowe v SA Trailer & Chassis Equip [2021] FWC 2708.  

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