Is 'abandonment of employment' a fireable offence?

In a recent case, the Fair Work Commission considered an employee who was dismissed after “walking out” during a conversation with his managers, causing his employer to conclude that he had “abandoned his employment.” The Commission ultimately found that the employee’s dismissal was unfair and awarded nearly $30,000 in compensation.

Background

Fe Ben Acal was employed at JBS Australia Pty Ltd (“JBS”), a meat and food processing company. On 2 October 2019, Mr Acal visited the workplace medical centre to report to the nurse that he would be taking a sick day on account of a sore finger. Mr Acal was already receiving workers’ compensation in respect of an injury to this finger and was limited to performing only light duties. He stated that he had reaggravated his injury during a task the day before and needed to take the day off to visit his doctor.

Following his conversation with the nurse, Mr Acal’s management team attempted to speak with him. The team was concerned that Mr Acal had not been working within his light duty restrictions. However, viewing the conversation as an argument, Mr Acal refused to participate and promptly left the medical centre. He then visited his doctor, who provided him with a medical certificate that stated he was unfit for work until 10 October.

Despite receiving this medical certificate, JBS concluded that, by “walking off the job” during his conversation with the management team, Mr Acal had “abandoned his employment.” This led the company to summarily dismiss Mr Acal a few days after he returned to work.

Judgment

The Commission considered whether JBS was entitled to require Mr Acal to remain at work during his conversation with his managers and, if so, whether his leaving constituted serious misconduct. It commented that, although JBS’ concerns were important and necessary, they were not time sensitive.

The Commission found that JBS had no reasonable basis to believe that, by leaving the workplace, Mr Acal had engaged in serious misconduct nor abandoned his employment. “Notwithstanding that the medical certificates explained the absence, [JBS]’s managers persisted with the view that [Mr Acal] had abandoned his employment in circumstances where they knew, or should have known, that he was totally incapacitated for work,” the Commission said.

With this, the Commission held that JBS’ reasoning was not valid, sound or defensible and that Mr Acal’s dismissal was unfair. It ordered that JBS pay Mr Acal $29,778 in compensation.

Key Takeaways

• Employers should ensure employees are not assigned tasks that may aggravate a pre-existing injury
• Employers should not assume that an absent employee has abandoned their employment, especially where a medical certificate has been provided
• Employers must ensure their reasons for dismissing an employee are valid, sound and defensible