Commission denies unfair dismissal claim of ill employee

by HCA18 Mar 2008

A recent case, Cortes v WorkCover Authority of New South Wales [2008] NSWIRC 20, illustrates that an ill or injured employee, unfit for work, must communicate with their employer beyond merely providing medical certificates. Failing to communicate sufficiently may permit the employer to consider the employment abandoned.

WorkCover employed Joshua Cortes from May 1991. In mid-2006 he was treated for anxiety and depression. Some time later, he applied for a higher role, but was unsuccessful. Cortes argued this caused him to develop severe depression.

In October 2006, Cortes provided a medical certificate stating that he was unfit to work until 4 April 2007. He then went to Spain on prearranged leave, from 3 October to 5 December 2006. While away, he suffered a heart attack. He did not return at the end of his leave, nor contact WorkCover. The day after his medical certificate expired, he obtained another six-month certificate which he sent to WorkCover, without a covering letter. The certificate was in Spanish.

From January to April 2007 WorkCover telephoned Cortes’ home many times and sent registered letters to his last known address, requiring he attend a medical assessment. The HR director then wrote warning that any ongoing, unexplained absence may be viewed as abandonment of his employment. WorkCover received no response and wrote again, notifying that the employment had ceased.

Deputy President PJ Sams found that WorkCover had acted appropriately and that it may have been able to begin the process of termination immediately after the expiry of Cortes’ annual leave, as six months’ sick leave had not been approved. He held Cortes had “an unavoidable obligation” to contact WorkCover. Deputy President Sams said WorkCover acted “more than reasonably and sympathetically” in trying to contact Cortes. He found WorkCover justifiably regarded Cortes as having abandoned his employment.

HR tips: Where an employee is unfit for work for an extended period, it is reasonable to require a formal sick leave application, attendance at a medical assessment and ongoing communication regarding a return to work date. With a continuing, unexplained absence, it is appropriate to request an explanation and/or medical assessment and warn that any ongoing unexplained absence may be considered abandonment of employment.

Inadvertent breakdown in communication leads to OHS conviction

A case in the South Australian Magistrates Court, Markos v Australian Fishing Enterprises Pty Ltd [2008] SAIRC 9, is a reminder to all employers of the need to be vigilant in meeting their duty of care to all persons in their workplaces.

Australian Fishing Enterprises (AFE) operated a fishing business. A work experience student sustained injuries to his hand when it was caught between ropes onboard a boat. The student was a ‘deemed’ employee under South Australia’s OHS legislation, even though his services were voluntary. Due to an unfortunate mix-up, the student did not receive an induction. He did not receive the standard onshore induction for new employees as he missed the boat departure time, relying on the start time for the previous day.

The crew were already at work when the student arrived on board (at sea), and there was no opportunity for the boat’s captain to conduct a proper induction or training, at sea, at that time. The captain asked the student to “stand back and observe” but did not enforce this direction or assign a supervisor to the student. The student did not follow the instruction to “stand back and observe” and sustained his injuries when, in his enthusiasm, he sought to untie ropes before a deckhand had the opportunity to show him how to do so safely.

AFE was alleged to have breached its duty by failing to ensure that its employee was “safe from injury and risks to health”. AFE argued that it had policies in place and relied on the chain of events set out above. It said that it was never intended that the student undertake the task without being properly instructed.

The South Australian Industrial Relations Court found that although AFE took its OHS responsibilities seriously and had sufficient policies and procedures, the company failed to observe its own policies and provide proper supervision. It convicted and fined the company.

HR tips: Employers must ensure that: safety procedures are followed; persons new to the workplace receive appropriate instruction and training; and adequate supervision and control is provided at all times, particularly when an employee is inexperienced or there are volunteers, work experience students and other persons in the workplace. An employer’s obligations are not lessened because of the inadvertent or careless conduct of an employee.

By Richard Taylor, special counsel, Australian Business Lawyers. Email