FWC probes employer's alleged contract breach over withheld work and pay after illness
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application where the central question was whether a worker had actually been dismissed at all.
The employer objected to the application, arguing that no dismissal had occurred and that the worker had simply abandoned his employment after failing to show up to work without notice.
The worker argued that his employer had breached his employment contract by failing to provide work and pay after a single day of unexplained absence due to illness.
He maintained that as a permanent full-time employee, he could not be stood down without pay and that the employer's conduct amounted to a fundamental breach of his contract. The worker said he had previously communicated his intention to return to work and that the employer's assumption of job abandonment was unreasonable.
The worker had been employed by the concreting company since January 2024 as a permanent full-time employee. The employment relationship began to unravel on 13 March 2025, when he failed to attend work without prior notification.
This absence occurred despite having previously arranged authorised leave for 14 March 2025 for a medical appointment and for 17 March 2025 to attend a family reunion in Moama.
The company operated a rostering system called "Clock Shark" which allowed employees to log on and find their roster details, including when and where they were required to attend for work. The project manager, who was the worker's direct supervisor, would formulate the roster using a spreadsheet with a colleague before uploading the information to this system.
The company's usual practice required employees to communicate absences through administrative staff, particularly someone named "Shona" who handled such matters.
On 10 March 2025, the worker had followed proper protocol by sending Shona a message about his planned absences. The message included screenshots of his medical appointment, and he also indicated his intention to return to work. When he failed to appear for work on 13 March, the project manager sent two text messages querying his whereabouts, stating "we didn't get any notice from you ... it puts us in a tough spot when we don't know what's going on especially when we're counting on you."
The worker later explained he was severely ill with gastroenteritis, sleeping intermittently throughout the day and in no condition to communicate with his employer. However, this explanation wasn't provided until four days later on Monday, 17 March 2025.
Despite the worker's prior communication about returning to work on Tuesday, 18 March, the project manager made a decision when preparing the roster for the week beginning 17 March 2025. During the FWC hearing, the project manager admitted that he had "assumed [the worker] had finished" and when it was put to him that he had assumed the worker had "abandoned his employment," he agreed with this proposition.
This assumption was based solely on the unexplained absence of 13 March and the lack of immediate response to text messages. The project manager sent an email on Saturday, 15 March 2025, which said: "Hey, hope your shoulder appointment was ok yesterday, just following up what happened on Thursday when you didn't turn up to work. We still haven't heard from [sic] and are planning for the week ahead. Are you planning on returning or contacting us? At this stage we will plan for you not being around next week."
The FWC noted there was some attempt by the project manager to suggest that he believed the worker was in communication with other people from the company on 13 March 2025. However, no evidence was given by these other people, and it was not put to the worker in cross-examination that he was in contact with others on this day. The FWC stated: "I do not accord any weight to this evidence."
The project manager's decision to exclude the worker from the roster had immediate consequences. The FWC found it was not in dispute that the worker was not offered work on Tuesday, 18 March 2025, or for the rest of that week, despite having previously indicated he would be available for work from Tuesday onwards.
The worker eventually responded on Monday, 17 March 2025, explaining his absence and confirming his availability. His message said: "Hey sorry about last Thursday. I was crook in the gets only just come good yesterday and have been away. I'll be in tomorrow."
However, when he checked the Clock Shark rostering system, he discovered he hadn't been scheduled for work and questioned this decision.
The project manager's response highlighted the communication breakdown: "[Worker], Yes, as I said in Saturday's txt msg (sic) we have not heard from you, and as such have not planned for you to be in this week... You still have not addressed the issue that You did not show up to work Thursday, didn't let us know but were able to txt (sic) other workers on Thursday and didn't contact us till Monday 12 pm. This is simply not acceptable."
The situation deteriorated when the worker wasn't offered any work for the entire week of 18-21 March 2025. On Friday, 21 March, the worker sent a message asserting his rights: "I have not been provided any work or pay for several days now. I have got advice on this. Because I am fulltime permanent I can't be stood down without pay... To stand me down without pay is tantamount to dismissal and is a fundamental breach of my contract of employment."
The worker received no immediate reply, with the project manager explaining he was away for the weekend. On Sunday, 23 March 2025, the worker discovered he hadn't been put on the roster for the following week and sent another message outlining his position and grievances about the lack of work and pay.
The FWC examined whether the worker had been dismissed within the meaning of section 386(1)(a) of the Fair Work Act 2009, which covers termination at the employer's initiative. The worker argued that his dismissal occurred through the employer's conduct that fundamentally breached his contract rather than through forced resignation under section 386(1)(b) of the Fair Work Act.
The FWC applied the established legal test that defines contract breach as conduct that shows "an unwillingness or an inability to render substantial performance of the contract" or "conduct of a party which evinces an intention no longer to be bound by the contract." This means looking at whether the employer's actions would reasonably suggest to the employee that the employer no longer wanted to honour the employment contract.
The employer argued that "temporary, non rostering does not of itself repudiate the contract" and referred to another FWC decision. However, the FWC found this argument unhelpful, noting that the employer's "insistence on making submissions about matters not at issue before me has not assisted [the employer] in this matter."
The FWC examined whether the employer's conduct could be considered abandonment of employment by the worker. The legal test for abandonment requires that an employee stops attending work "without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract."
However, the FWC found the evidence did not support abandonment. The decision stated: "On 10 March 2025 [the worker] notified [the employer] that he would be 'back at work on the Tuesday' – meaning Tuesday 18 March 2025."
The FWC was also critical of the project manager's assumption: "[The project manager] was far too quick to assume that [the worker] no longer intended to perform his duties under his contract of employment and had renounced it. It was an unreasonable assumption."
The FWC also found that the worker was not lawfully stood down under section 524 of the Fair Work Act, which only permits stand downs in specific circumstances such as industrial action or machinery breakdowns.
The FWC concluded: "[The worker's] conduct, in filing his application in the Commission seeking relief in respect of unfair dismissal amounted to an acceptance of the repudiation of his contract."
The final determination was: "I find [the worker's] employment was terminated at the initiative of his employer, [the employer], within the meaning of s 386(1)(a) of the Act." The employer's objection was dismissed, allowing the unfair dismissal application to proceed to a full hearing on its merits.
