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Excerpt from this article first published in Human Resources Magazine, Issue 147 - 18 March 2008
A recent case illustrates that an ill or injured employee, unfit for work, must communicate with their employer beyond merely providing medical certificates. Failing to communicate sufficiently may permit the employer to consider the employment abandoned.
WorkCover employed Mr Cortes from May 1991. In mid 2006 he was treated for anxiety and depression. Some time later, he applied for a higher role, but was unsuccessful. Mr Cortes argued this caused him to develop severe depression.
In October 2006, Mr Cortes provided a medical certificate stating that he was unfit-to-work until 4 April 2007. He then went to Spain on pre-arranged leave, from 3 October to 5 December 2006. Whilst away, he suffered a heart attack. He did not return at the end of his leave, nor contact WorkCover. The day after his medical certificate expired, he obtained another six-month certificate which he sent to WorkCover, without a covering letter. The certificate was in Spanish.
From January to April 2007 WorkCover telephoned Mr Cortes’ home many times and sent registered letters to his last known address, requiring he attend a medical assessment. The HR Director then wrote warning that any ongoing, unexplained absence may be viewed as abandonment of his employment. WorkCover received no response and wrote again, notifying that the employment had ceased.
Deputy President Sams found that WorkCover had acted appropriately and that it may have been able to begin the process of termination immediately after the expiry of Mr Cortes’ annual leave, as 6 months sick leave had not been approved. He held Mr Cortes had “an unavoidable obligation” to contact WorkCover. His Honour said WorkCover acted “more than reasonably and sympathetically” in trying to contact Mr Cortes. He found WorkCover justifiably regarded Mr Cortes as having abandoned his employment.
Where an employee is unfit for work for an extended period, it is reasonable to require a formal sick leave application, attendance at a medical assessment and ongoing communication regarding a return to work date.
With a continuing, unexplained absence, it is appropriate to request an explanation and/or medical assessment and warn that any ongoing unexplained absence may be considered abandonment of employment.
Richard Taylor
Special Counsel
