Fair Work examines worker's attendance and performance
A worker recently filed a dismissal claim against her employer, alleging that she was unfairly accused of abandoning her employment. She said she had a valid reason to be on long-term leave due to her sickness.
The worker, Ally Hyde-Nawell, filed a general protections application related to dismissal with the Fair Work Commission (FWC). She alleged that her employer, Children's Rights Australia Limited, trading as Children's Rights Australia Op Shop, took adverse action against her. The employer argued that the worker was not dismissed.
Children's Rights Australia Limited is a registered charity primarily run by volunteers selling donated items. Hyde-Nawell started her employment around June 6, 2022, in a retail role on a permanent part-time basis, transitioning from a volunteer position on February 21, 2022.
Consistently absent from work?
According to records, her eligibility for a government wage subsidy was contingent on being offered 15 or more hours a week. This opportunity aimed to reintegrate her into the workforce following personal challenges affecting her employability.
The employer, aware of her conditions through Disability Employment Services monitoring, accommodated her request not to work two consecutive days. The worker, after accepting a part-time role for two days per week, voluntarily contributed on additional days.
During her employment, the employer noted instances of the worker’s absence from shifts and sick leave without prior notice. Between April and early June 2023, Hyde-Nawell was frequently unreachable, citing illness for a two-and-a-half-week absence.
The employer claimed she abandoned her employment on June 8, 2023, after not receiving any response and failing to attend her shift. On June 9, 2023, Hyde-Nawell said that she was advised by the employer to resign rather than face termination, stating that she was “no longer required by the business.”
Was there forced resignation?
The FWC said that, in an allegation of forced resignation, “all the circumstances – including the conduct of both the employer and employee – must be examined.”
“In other words, it must be shown that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.”
The FWC also explained what constituted “abandonment of employment.” Abandonment occurs when the following is established:
- an unexplained or unauthorised absence from the workplace;
- a reasonable period of time where the employee has been absent without explanation or authorisation;
- whether there was any communication from the employee during the absence, or the communication from the employee clearly displays an intention of not returning to work;
- whether there was any enquiry by the employer in the time period where the employee is absent.”
Did she abandon her work?
The worker said that she had to take sick leave lasting two and a half weeks due to a “bad flu.” She submitted a medical certificate covering her absence only on May 16, 2023, and May 17, 2023. Despite her extended absence, she returned to work for one shift on June 6, 2023, suggesting that she did not abandon her employment.
The worker did not attend work on June 8, 2023, as scheduled. However, the FWC said that an absence on this single day should not be deemed sufficient to conclude that she abandoned her employment. It was the employer who only assumed that she did.
“The [employer] did not demonstrate a request for discussion through any written communication, nor indicate that the [worker] would be rostered on any future shift.”
It found that the employer did not have a future scheduled meeting, and the worker had received no more shifts. Thus, the FWC said that “it appeared that the employment ended at the initiative of the employer.”
Consequently, the FWC said that she had been dismissed. The matter was then listed for conference at a later date.
