Worker fails to return to work after suspension, claims dismissal

FWC looks at case involving worker who requested return-to-work safety plan

Worker fails to return to work after suspension, claims dismissal

The Fair Work Commission (FWC) recently dealt with a dismissal dispute under the general protections provisions of the Fair Work Act 2009.

The case involved a worker who claimed that she was dismissed by her employer, Sunraysia Mallee Ethnic Communities Council Inc (SMECC), in contravention of the Act.

The FWC had to determine whether the worker's employment was terminated on the employer's initiative, constituting a dismissal under section 386(1)(a) of the Act.

The case presented a complex situation where the worker, who had been suspended pending an investigation, was directed to return to work but did not do so.

The worker's actions raised questions about whether her conduct amounted to a repudiation of her employment contract, and if so, whether this meant that her employment had already ended before the employer issued a termination letter.

Suspension and investigation

In August 2023, the employer suspended the worker and launched an investigation into her conduct. The suspension came after the worker sought advice about mandatorily reporting information provided to her by a client, which led the employer to believe that misconduct may have occurred.

The investigation concluded in October 2023, with the employer deciding to give the worker a warning and requiring her to attend compulsory counseling sessions and training.

The employer lifted the worker's suspension and directed her to return to work.

Worker's response and failure to return

The worker, through her solicitors, disputed the investigation's outcome and raised a complaint of bullying and harassment against the employer's Chief Executive Officer.

The worker expressed her desire to return to work "in circumstances where she feels safe to do so" and requested a return-to-work safety plan.

Despite the employer providing a return-to-work plan and multiple directives to return to work, the worker did not do so.

The worker's solicitors sent a letter to the employer, stating:

"Our client requires that any findings of alleged breach of her employment Contract and or SMECC's Confidentiality policy(s) be retracted. If SMECC agree to this course of action, [the worker] is willing to resume her role immediately, providing that SMECC either get external advice and or detail a RTW Safety Plan that ensures [the worker] is returning to a safe workplace, free from any psychological hazards in accordance with the provisions of the OS&H Act."

According to the FWC, this statement from the worker's solicitors indicated that the worker was willing to return to work, but only if certain conditions were met.

The worker's position was that she required the employer to retract the findings against her and provide a safe working environment before she could resume her duties.

Termination letter and dismissal dispute

On November 20, 2023, the employer sent a letter to the worker, terminating her employment effective immediately. The letter stated that the worker's refusal to follow lawful and reasonable instructions to return to work constituted "wilful and deliberate behaviour which is inconsistent with the continuation of [her] employment."

The employer argued that the worker's conduct amounted to a repudiation of her employment contract, ending the employment relationship. The employer claimed that the termination letter merely accepted this repudiation and did not constitute a dismissal on the employer's initiative.

The FWC had to consider the arguments put forth by both parties and determine whether the worker's employment was terminated on the employer's initiative, as per section 386(1)(a) of the Act.

The employer relied on the decision in Qureshi v Spotless Services Australia Limited, where it was found that an employee's repudiatory conduct ended the employment relationship, and the employer's acceptance of the repudiation did not constitute a dismissal.

However, the FWC distinguished the current case from Qureshi, noting that the worker in this case, through her solicitors, was in regular communication with the employer and repeatedly stated her desire to return to work, albeit subject to conditions. This was in contrast to the applicant in Qureshi, who made no contact at all with his employer.

The FWC referred to the Full Court of the Federal Court decision in Mahony v White, which affirmed the interpretation of "termination at the initiative of the employer" from the case of Mohazab v Dick Smith Electronics Pty Ltd (No 2).

The Court in Mohazab stated:

"It is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."

Was employment terminated by employer?

Applying this principle to the case at hand, the FWC found that the worker's employment was still ongoing just prior to the employer's termination letter.

The worker was required to return to work but did not do so. However, the worker's actions did not indicate that she did not wish for the employment relationship to continue.

The FWC emphasized that it did not need to determine whether there was a repudiation of the employment contract or relationship, as the key question was whether the employment was terminated on the employer's initiative.

In conclusion, the FWC found that the employer's termination letter on November 20, 2023, brought the worker's employment to an end, and this constituted a dismissal within the meaning of section 386(1)(a) of the Fair Work Act 2009. The FWC's decision highlighted that:

"In this matter, just prior to the Employer's termination letter of 20 November 2023, [the worker's] employment with the Employer was still on foot. She was required by the Employer to return to work but did not. [The worker's] actions did not indicate that she did not wish for the employment relationship to continue."

The FWC's decision also noted that the worker's requests for the employer to retract the findings against her and provide a safe working environment were exercises of her workplace rights.

The FWC stated that "it would be a perverse outcome contrary to public policy that an exercise of workplace rights could amount to repudiation of the employment contract."

Thus, the FWC said that the worker was dismissed by the employer. It then referred the matter to a conference at a later date.

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