Internal miscommunication leads to alleged 'abandonment of employment'
The Fair Work Commission (FWC) recently dealt with a case involving alleged unfair dismissal and abandonment of employment. The dispute centred around whether a worker was terminated at the employer's initiative or had abandoned their position.
In this case, the FWC examined the issues of employment termination, highlighting the importance of clear communication and proper procedures in the workplace.
The decision offers valuable insights for HR professionals on handling employee absences, performance issues, and the use of technology in employment-related communications.
Background of the case
The worker commenced employment with the employer on 16 January 2023 as a full-time legal assistant in South Perth, Western Australia. The employer had concerns about the worker's performance and attendance for an extended period before the employment relationship ended in March 2024.
The exact date of the employment's end was heavily contested, as were the legal conclusions drawn from the events surrounding the collapse of the working relationship.
The worker contended they were dismissed within the meaning of the Fair Work Act on 7 March 2024, while the employer refuted this claim.
Events leading to the dispute
The employer's director gave evidence that the worker's performance had been an ongoing concern for approximately 6 months prior to the employment ending.
The director noted several absences and attendance issues between 29 January 2024 and 20 March 2024, including unexplained absences, late arrivals, and early departures.
On 6 and 7 March 2024, the worker was absent due to illness. The worker sent text messages to another director of the company on both mornings, stating they were unwell with a migraine and would not be able to attend work. The worker provided medical certificates for these absences.
On 7 March 2024, the employer's director sent a text message to the worker titled “Subject: Notice of Employment Termination Due to Abandonment,” which had the following contents:
“Given these circumstances, we regretfully accept what we consider to be your abandonment of employment by your advice today that you are taking annual leave without prior agreement. We will process the payout of any leave entitlements you have. Arrangements will be made for you to collect your personal belongings and to return any company property including your office key.”
“We regret that our professional relationship has come to an end under these circumstances. Should you wish to discuss the collection of your personal effects or have any questions regarding the termination process.”
“It is regrettable that our professional relationship is at an end because we appreciated you personally. We have an obligation to other staff members and to the company for that reason have needed to accept your abandonment of employment.”
This message formed the basis of the worker's claim that they were dismissed at the employer's initiative.
The following day, an in-person discussion took place between the worker and the employer's director. The conclusions drawn from these two days in early March 2024 formed the bulk of the dispute concerning the objection raised.
The parties' arguments
The employer argued that the worker was not dismissed for the purposes of section 365 of the Fair Work Act. They relied primarily on the evidence of their director to support their contention that they did not terminate the worker's employment on 7 March 2024.
The employer submitted examples of the worker's conduct following the alleged date of dismissal to support their position. These included the worker attending the office for a meeting, providing medical certificates, and accessing the payroll system for a wage advance.
The employer's director admitted that he "reacted" when the worker failed to attend work on 7 March 2024. He later became aware that the worker had contacted another director and advised that they were unwell, providing a medical certificate.
Meanwhile, the worker submitted that the text message received on 7 March 2024 was a valid notice of termination. He argued that the employer initiated the termination by sending this message, and the employment came to an end by this act.
The worker also contended that once the employer had terminated his employment, he could not unilaterally rescind the termination without the worker's agreement. He cited legal precedents to support this argument, including:
"... the giving of a notice terminating the employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent."
This quote from Riordan v War Office emphasises the finality of a termination notice and the requirement for mutual consent to withdraw it.
The FWC's considerations
The Commission examined the concept of abandonment of employment, noting:
"Abandonment of employment" is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract."
This definition highlights the importance of clear communication and proper documentation of absences to avoid misunderstandings about employment status.
The Commission also considered the use of artificial intelligence in drafting the termination message. The employer's director admitted to using ChatGPT to generate the text message sent to the worker on 7 March 2024.
The FWC also noted that the worker had clearly communicated to one of the employer's directors that they were unwell and unable to attend work.
However, despite this notification to the appropriate contact, another director erroneously concluded that the worker had "abandoned" their employment.
The Commission's decision
After considering all evidence and submissions, the FWC determined that the worker was dismissed at the employer's initiative.
The Commission found that the text message sent by the employer on 7 March 2024 was the action that directly resulted in the termination of the employment relationship.
The Commission said:
"It is evident from the [message] in question that it was the intention of the [employer] to bring the employment relationship to an end."
Furthermore, the Commission noted:
"From the evidence and submissions of the parties, I have formed the view that the [worker] did not consent to or agree with the rescinding of his termination."
This highlights the principle that once a termination is initiated, it cannot be unilaterally withdrawn without the agreement of both parties.
Finally, the Commission concluded:
"Having determined that the [worker] was dismissed at the initiative of the [employer], the jurisdictional objection is dismissed."
This decision emphasises the importance for employers to follow proper procedures and maintain clear communication when dealing with employee absences and performance issues to avoid potential unfair dismissal claims.
