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Dismissal unfair after COVID-related communication lapse

The employer accused the employee of abandoning her employment.
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Dismissal unfair after COVID-related communication lapse

Dismissal unfair after COVID-related communication lapse

25 November 2020

By Gaby Grammeno

A commission has found a woman was unfairly dismissed after she stopped communicating with her employer about her difficulties in obtaining a COVID-19 test in March. At an early stage of the pandemic when the availability of testing was very limited, the employer had imposed a negative test result as a condition of her return to work.

The employer accused her of abandoning her employment when she failed to respond to contacts after several frustrated attempts to be cleared to return to work.


Obstacles to testing for COVID

The woman was employed as a business development manager with an asphalt contractor in a Sydney suburb.

In late March 2020, she developed a cough, runny nose, sore throat and headache and was concerned in case her symptoms signified COVID-19. She took sick leave and visited her GP, who said she did not think the woman had the virus, but as a precaution, she suggested the woman self-isolate at home and gave her a medical certificate stating she was unfit for work from 26 March until 2 April. The woman informed her employer of the situation on the first day of her sick leave.

Over the following days, her employer called her many times and texted her to let her know she’d need a negative COVID-19 test before returning to work. After failing to return a number of calls, she advised him that her doctor had not cleared her, but she was keen to return to work and would do so at the end of the week.

Some days later she emailed her employer a letter noting that doctors were unable to provide patients with COVID-19 clearance.

The woman then made numerous attempts to be tested for COVID-19, including driving more than three hours to and from a major hospital. However, despite her symptoms, she’d been told she didn’t meet the criteria to be eligible for a test.

Over the next two weeks, the employer tried several dozen times to contact the woman by text, phone and email to find out if she’d been tested. For the first week, she replied to some of the messages, informing him of her lack of success so far, but after 8 April she neglected to respond until 15 April, when she received a letter of termination.

Due to the lack of communication, the company considered she had abandoned her employment. She disputed her employer’s assertion, explaining that she’d been trying to deal with car troubles and financial worries. She insisted that though she’d missed calls, she’d always called back on the same day and had spoken with him every day on the previous week.

She then applied to the Fair Work Commission for a remedy, claiming she’d been unfairly dismissed.


In the Commission

The Commission’s Deputy President first considered the issues associated with abandonment of employment in the light of the company’s submission that a reasonable person would have formed the view that the woman was refusing to communicate with the employer, without any explanation, and was unwilling to cooperate with the employer’s reasonable WHS policy that she needed a negative COVID-19 test to enable her to return to work.

The Deputy President disagreed, noting that this submission could only apply to the period from the evening of 8 April until the morning of 15 April, which by virtue of the Easter break was a period of less than three working days. Otherwise, notwithstanding that she was on sick leave and annual leave, the woman had been reasonably responsive to the employer’s enquiries, she made it clear that she wanted to return to work and she took a number of steps to try and obtain a test result for COVID-19.

He found that the employer did not have a valid reason to dismiss the woman and that the dismissal was harsh, unjust and unreasonable, given the company’s failure to notify her of the consequences of her failure to communicate or give her the opportunity to respond before terminating her employment.

He ordered that she be paid four months’ pay as compensation.
 
The bottom line: Before terminating a worker’s employment, the employer needs to have a valid reason, notify the worker of the reason for dismissal and give him or her an opportunity to respond.


Read the judgment

Ah San v Shamrock Consultancy Pty Ltd [2020] FWC 5364 (16 November 2020)

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