Worker argues significant mental health and personal health issues
A worker challenged his dismissal, arguing there was no valid reason for termination as he had not abandoned his employment, and the employer did not take adequate action to notify him that his employment was at risk.
The worker contended he was suffering from significant mental health and personal health issues, which impacted his ability to communicate with the employer, and he did not see the email until the morning of the deadline.
The employer maintained that the worker failed to attend work for an extended period and failed to communicate his absence, formed the view that the worker had abandoned his employment, and sent an email to the worker's personal email address used for work-related communication inviting contact by a specified date.
Employment and attendance concerns
The employer confirmed that the worker's attendance had been a concern for some time and provided evidence in the form of a performance improvement plan, which had been provided to the worker on 28 January 2025. A required outcome of the performance improvement plan was a "significant improvement in attendance rates at work".
From the payroll data provided by the employer, the worker's attendance, starting from May 2025, declined significantly. In the month of May 2025, the worker had six days of unpaid leave out of 22 working days.
From the text message evidence provided by the parties, the worker was in contact with his supervisor via text message between Wednesday, 4 June and Monday, 9 June 2025. The text messages from the worker to the supervisor stated that he was unwell and would not be attending work on Wednesday, 4 June 2025. The worker sent similar text messages on Thursday, 5 and Friday, 6 June 2025.
A few days later, the worker sent a text message confirming that he was still unwell and that he would return on 11 June 2025. The worker confirmed that he was planning to speak to the general manager upon his return on 11 June 2025. The worker did not return to work on the said date and did not respond to the communication from the employer after this period.
Email sent to personal email address
After the worker failed to return to work on 11 June 2025, as he had indicated to the supervisor via text message, the employer formed the opinion that the worker was abandoning his employment and that he was unlikely to return to work. The employer sent an email to the worker on 12 June 2025; this email was sent to the worker's private email address, which was used for other work-related communication purposes, such as issuing pay slips.
The letter emailed to the worker confirmed that the employer was concerned about the worker's failure to attend work or provide an update in relation to his return to work, invited the worker to make contact with the employer in relation to his absence from the workplace, and confirmed that if the worker did not contact the employer by 16 June 2025, his employment would be terminated for abandonment.
After the worker failed to contact the employer by Monday 16 June 2025 as instructed, the employer decided to terminate the worker's employment on Tuesday 17 June 2025. The worker submitted that there was no valid reason for the termination, as he had not abandoned his employment with the employer.
Furthermore, the worker outlined that, at the time of his dismissal, he had been suffering from significant mental health and personal health issues which impacted his ability to communicate with the employer. The worker provided four medical certificates; however, these medical certificates related to earlier absences from the workplace, not the period in question surrounding the dismissal.
The worker submitted that the employer did not take adequate action to notify him that his employment was at risk of termination. The worker stated that he did not see the email until the morning of Monday 16 June 2025 and, upon seeing the email, he decided that his employment must be terminated as he had not contacted the employer by this date. The worker stated that, upon seeing this email, his mental health suffered, and he did not contact the employer.
Valid reason found for termination
The Commissioner determined that there was a valid reason for the termination of the worker's employment with the employer. The worker's conduct in the lead up to his dismissal was that he failed to attend work or communicate with his employer that he was unable to attend work.
The employer was not a large business, and it was a fair and reasonable conclusion that the continued absence and lack of communication from the worker about his intention to return to work impacted the employer's operation.
While the Commissioner appreciated that the worker was suffering from mental health issues and other personal medical issues in the lead up to his termination, that did not mean that the worker could simply stop engaging with his employer about his attendance at the workplace without expecting potentially negative outcomes for his employment.
The worker was employed to work with the employer from Monday to Friday and his repeated conduct of failing to attend work without notification from Wednesday 11 June 2025 until Monday 16 June 2025, while further failing to provide a response to the letter regarding the issue, constituted a valid reason for the employer to terminate his employment.
The worker submitted that his dismissal lacked procedural fairness. The employer submitted that, on 12 June 2025, an email was sent to the worker outlining that his employment was at risk and directing him to make contact by Monday 16 June 2025 or else his employment would be terminated for abandonment.
The worker asserted that the employer should have taken additional steps to ensure he was aware that his employment with the employer was at risk of termination. The employer provided the worker with two full business days in addition to the weekend to reply; however, the worker did not contact the employer.
It was also acknowledged and accepted that an email to an employee's personal email address, especially one used for common communication such as issuing payslips, was a reasonable attempt by an employer to notify an employee that their employment was at risk.
The Commissioner accepted that the worker was frustrated and upset that the employer did not make more of an effort to ensure he was aware that his employment was at risk.
However, the Commissioner was satisfied that the employer took adequate steps in emailing the worker informing him that his employment was at risk of termination and providing him with an opportunity to respond prior to a final decision being made.
From the evidence provided by the general manager, the Commissioner believed that had the worker communicated with the employer about his need for additional unpaid leave from the business, the employer would have provided the worker with additional time off. There was no evidence to suggest that the worker was unreasonably refused a support person.
The employer noted that it did have concerns about the worker's performance at work and that it previously placed the worker on a performance improvement plan. However, as the dismissal of the worker did not relate to his performance, the Commissioner considered this to be a neutral consideration.
The employer was not a small business for the purpose of the Act; however, the employer was not a large business that had the resources of specialist internal human resources management or industrial relations support. In her evidence before the Commission, the business manager confirmed that, in her position as business manager, she was required to wear many hats and, as a result, was the default person who managed workplace relations matters.
From the evidence before the Commission, the business manager and the employer, while not being a large employer, had put considerable effort into ensuring workplace relations matters were responsibly recorded and managed by the business. From the evidence before the Commission, the Commissioner did not consider that the lack of a dedicated human resources management professional or the small size of the employer played a significant part in the reason for termination or caused any issues with the process followed.
The Commissioner determined that the dismissal of the worker was not harsh, unjust, or unreasonable. It was therefore not unfair. The application was dismissed.
