Worker on leave for injury assumes his employment has ended
The Fair Work Commission (FWC) recently dealt with a worker who argued he was unaware of his alleged dismissal, hence his late application claim.
In its defence, the employer argued that the worker was not dismissed and, in the alternative that he was dismissed, the application was out of time.
Silent treatment from the employer
Before the case arose, the worker started working for the employer as a carpenter. He was a casual employee who worked regularly in a private family business and was paid an hourly rate.
Around March 2023, the worker and others were erecting a framework during their working hours. However, the framework had not been correctly established, and the worker tried to rectify it, only to be injured.
Due to the incident, the worker was off work from 3 March and made a worker’s compensation claim which the employer supported.
During a conversation between the worker and the employer over the following days, the worker informed the latter that the doctor had indicated that his return to work would be on 31 March.
Despite being informed of the worker’s return to work, the latter was not rostered to work between 31 March 2023 and 14 April 2023.
By the second week of April 2023, the worker became worried that he was not being advised to return to work despite being medically cleared on 31 March and even though the building business was still operating.
“He twice telephoned [the employer],” the FWC said. “Both calls went to message bank and were not returned by [the employer], who was sowing crop.”
On 14 April 2023, the worker messaged the employer stating, “You obviously have ceased my employment, so I need access to my tools and an employment separation certificate, and any annual leave pay to be finalised asap,” to which the employer did not reply.
It was only when the worker sent a text message to the employer to get his tools that the employer eventually replied.
After such, the worker was no longer rostered between 14 April and 19 May 2023, and no employment separation certificate was provided by the employer.
Hence, the worker argued that he was dismissed but did not know the date that the dismissal took effect because the employer did not notify him.
Meanwhile, the employer argued that the worker remained an employee until 14 April 2023, when he asked for an employment certificate and that the worker ended the relationship on his initiative.
“[The employer] submits that [the worker] was not rostered in the two-week period from 31 March 2023 to 14 April 2023 because he had been notified the week earlier that he would not be rostered unless he was able to be supervised, and that in that fortnight neither [the employer] nor his father were available to supervise him as that they were performing farm duties,” the case noted.
FWC’s decision
Ultimately, the Commission found that the worker was dismissed from his employment and that his late application claim warranted an extension of time.
The FWC noted that the employment relationship ended at the initiative of the employer on 23 April 2023 when the worker was told where he could collect his tools, which was days after the employer chose not to reply to the worker’s text message about his employment status.
It also dismissed the employer’s contention that the worker left on his own accord because of the mere fact of him asking for an employment separation certificate.
“An employee asking for an Employment Separation Certificate in order to access unemployment benefits in circumstances where that employee has reasonable grounds to believe that their employment has been ended by their employer’s conduct is not a resignation or termination on the employee’s initiative,” the Commission stated.
Moreover, while the worker’s application was eight days out of the statutory period, the FWC agreed to an extension of time since the worker was not notified by the employer and was left to second guess.
“[The worker] was not advised of dismissal in a clear and unambiguous manner,” the Commission stated. “He was only aware of dismissal by assessing the conduct (omission and commission) of the employer and drawing his own conclusions.”
