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Excerpt from this article first published in Human Resources Magazine, Issue 150 - 15 April 2008
The Australian Industrial Relations Commission has held in Josephine Searle & Moly Mines Limited [2008] AIRC 2010 that Ms Searle abandoned her employment when she failed to ensure that a workers’ compensation certificate covering her absence reached her employer and when she did not directly respond to her employer’s attempts to contact her.
Ms Searle had made a number of serious allegations against another employee. Moly investigated the complaint and suspended both employees. The company found that Ms Searle’s complaint could not be substantiated
On 31 October 2007, the company telephone Ms Searle to inform her that she could return to work and that she would not be working with the other employee. Ms Searle said that she would ring back with a response. The next day, the company, having not received a response, repeatedly tried to contact Ms Searle by telephone but was unsuccessful. The company then emailed and sent a letter to Ms Searle telling her that her suspension from work had been lifted and she was requested to report for work on 2 November 2007.
From 2 November, Ms Searle sent a number of medical certificates through her lawyer declaring her unfit for work until 22 November 2007. The company wrote to Ms Searle assuring her that she would not be working with the other employee.
As Ms Searle had failed to return to work by 30 November 2007, the company again wrote to her stating that as there had been no contact from her since her last medical certificate expired on 22nd November, she was considered to have abandoned her employment. The letter was delivered to Ms Searle’s home by courier.
Later that day, the company received a telephone call from a medical centre stating that Ms Searle was still unfit for work. A medical certificate declaring Ms Searle unfit for work until 12 December was delivered to the company.
In determining whether Ms Searle had in fact abandoned her employment, the Commission considered a number of relevant principles, including that an employee will have repudiated his or her employment contract if his or her conduct evinces an intention to not be bound by the contract and repudiation of an employment contract occurs when an employee abandons his or her employment.
The Commission also referred to a decision Bellville v Helsolyn Pty Limited which held that failure of an employee to present for work when requested by the employer and/or failure to indicate his or her position to the employer can be sufficient to give the employer reason to believe that the employee does not intend to return to their employment.
In determining that Ms Searle had abandoned her employment, the Commission observed that the company had repeatedly attempted to contact her and that she had actively ignored those communications. That Ms Searle chose to communicate with her employer through third parties about her absence, had the fatal side effect that at a critical point the medical certificate covering her absence till 12 December did not reach her employer and she was unaware that this was the case.
The company concluded that Ms Searle’s failure to attend for work meant that she had abandoned her employment. The Commission held “Applying the common law authorities, considered objectively the conduct of the applicant, from the perspective of the respondent at the time, can in my view reasonably be said to have conveyed to the respondent an intention by the applicant to abandon her employment. This was how the respondent viewed the situation on the information available to them at the time, they accepted the repudiation and I am satisfied that that was reasonable in the circumstances.”
That Ms Searle did not really intend to abandon her employment was held to be irrelevant. What was relevant was that the conclusion reached by the employer, that Ms Searle had evinced an intention to abandon her employment, was reasonable given the circumstances of the case.
The Commission held that the company reached a reasonable conclusion when it did not receive the final medical certificate.
The above case demonstrates that an employer must take all reasonable steps to contact an absent employee before it can conclude that the employee does not want to work for the employer any more.
In the above case, the company attempted to contact Ms Searle by telephone several times, sent her letters, text messages and emails, the latter of which told Ms Searle that if she did not report for work by the stipulated date or contact the company she would be considered to have abandoned her employment.
Gordon Jervis
Senior Associate
