Worker allegedly took absence from work after vaccination mandate
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued unfair dismissal after he was allegedly away from work because of his vaccination status.
In its defence, the employer argued that the worker abandoned his employment, hence, no unfair dismissal occurred.
Vaccination mandate
Prior to the unfair dismissal case, the worker was employed as a hydraulic fitter for the company on 6 November 2019.
“Other than stating that the [worker’s] type of employment was ‘Full-time (7.5 hours/day Mo –Fr)’ the contract does not stipulate the times of work or that the [worker] must attend the premises for work,” the FWC stated.
In October 2021, the company was subject to the Victorian Government COVID-19 vaccination mandate. So, on 5 October 2021, the employer sent a memorandum to all employees that only fully vaccinated people would be allowed to return to work.
Such communication was then repeated to all employees at a meeting wherein the worker expressed his view that he did not want to get vaccinated, after which he “left work (early in the morning) and never returned,” the employer argued.
On several occasions after the vaccination mandate, the worker provided medical certificates to the employer to explain his absences from work.
However, on 27 October 2021, the employer said that it informed the worker that his personal leave accruals had been exhausted and that he would need to take annual leave.
Abandonment of employment
The employer noted that it sent a further email to the worker in the earlier days of November 2021 asking for an update if he would “be able to return to work vaccinated in the foreseeable future,” to which it said the worker did not answer to such a request.
Instead, the worker responded with several documents, including a medical certificate from a general practitioner declaring that the worker had a “medical condition and will be unfit for work.”
“He was absent from work after mid-November 2021 and did not provide leave applications or other material that would explain or authorise his absence from work,” the FWC noted.
In a letter sent to the worker, the employer stated that the worker’s employment was officially terminated on 24 October 2022 due to abandonment of employment.
However, the worker contested that he was absent from work because of his vaccination status. Instead, he argued that he was away from work due to his personal leave as a result of pain and other symptoms after obtaining an injury.
HRD previously reported about an employee who stopped responding to the employer’s communications and did not provide an explanation for the period that she went away. The Commission resolved the issue of whether it was considered abandonment of employment or not.
FWC’s decision
After examining the case, the Commission found that the worker abandoned his employment at some time after November 2021. Hence, no termination occurred on the employer’s initiative.
It noted that there was no evidence showing that any period after 11 November 2021 was an authorized absence, whether paid or unpaid leave, which could have supported the worker’s argument.
The Commission also highlighted the fact that the case does not merely involve a worker who avoided contact with his employer on their work attendance for a day or a week.
Instead, there has been no contact from the worker for over a year, and unfortunately, there was no evidence that the worker attempted to work during that period.
