- Emily Harvey, Senior Associate, King & Wood Mallesons
The Fair Work Commission has held that an employer who refused to answer the calls, emails and text messages of an injured employee when she sought to return to work repudiated her employment contract and unfairly dismissed the employee.
Implications for employers
This decision emphasises the importance of maintaining communication with employees when they are on periods of extended sick leave and illustrates one circumstance when an employer’s conduct will amount to repudiation of an employment agreement.
Ms Maree Hayes was employed by Austrend International Pty Ltd (Austrend) from September 2014 until April 2016.
Ms Hayes suffered a non-work related injury on 7 January 2016 which prevented her from performing work. She provided a medical certificate to Austrend, but when she spoke to the owner, Mr Denzil Rao, he suggested that she should resign. Ms Hayes informed him that she had no intention of resigning and he stated that he would need to find a temporary person to take over her role, as Austrend could not go without a representative in Victoria for the 12 to 16 weeks she was likely to be absent.
Following advice from her union representative, Ms Hayes then sought to negotiate a departure from the business on around 12 January 2016. Mr Rao informed Ms Hayes they were not going to terminate her employment, and it appears no further attempt to terminate her employment was made after this time. Ms Hayes continued to send Mr Rao emails providing her latest medical certificates and on 29 March informed him that her expected date for return to work was 11 April. Mr Rao did not respond to that email. From early April, Ms Hayes made repeated attempts to contact Mr Rao by phone and text message to confirm that she could return to work. She gave evidence that her union representative also called Mr Rao and was informed by Mr Rao he wasn’t sure if he wanted to keep employing Ms Hayes.
On 20 May 2016, Ms Hayes sent Mr Rao an email stating that after her many attempts to contact him and his lack of response, she had no choice but to conclude that she had been dismissed by Austrend. She requested that Mr Rao respond to that email. He did not.
Ms Hayes therefore brought a claim for unfair dismissal. Austrend submitted that Ms Hayes’ employment had not been terminated and that Mr Rao had informed Ms Hayes that she needed to provide a return to work certificate prior to recommencing work, which she had not provided. Austrend also provided evidence that Ms Hayes had received two previous warning in relation to her poor performance, due to a failure to meet her sales targets.
Part 3-2 of the Fair Work Act provides the applicable remedies where an employee has been unfairly dismissed. In particular, section 387 provides the relevant factors the FWC must consider when determining whether a dismissal was harsh, unjust or unreasonable.
Deputy President Gooley held that Ms Hayes had been dismissed. She found that Mr Rao had not asked her to provide a return to work certificate and that from 11 April 2016, Ms Hayes was ready, willing and able to work and that no work was provided, nor was she paid. As such, Austrend had repudiated Ms Hayes’ contract of employment. She considered that Ms Hayes’ email on 20 May put Mr Rao on notice that Ms Hayes considered his conduct as terminating her employment, and when he failed to respond she was entitled to accept that repudiation.
Deputy President Gooley accepted that Austrend was a small business, however she held that Austrend could not rely on the Small Business Fair Dismissal Code as it had maintained that it did not dismiss Ms Hayes. While recognising that there was evidence that Ms Hayes had not met Austrends’ performance expectations, she found that there was no evidence on which she could conclude that Austrend had dismissed Ms Hayes for poor performance. The Code therefore had no application.
Deputy President Gooley was not satisfied that there was a valid reason for the termination of Ms Hayes’ employment and found that Austrend’s conduct in choosing to ignore Ms Hayes’ repeated attempts to return to work was unreasonable and the decision not to let her return to work was harsh. Austrend’s failure to give her notice that she would not be permitted to return to work was “not the act of a fair minded employer”.
Deputy President Gooley ordered Austrend to pay Ms Hayes $4,230 (and $401 in superannuation). This amount was based on the Deputy President’s determination that Ms Hayes would only have been likely to remain in her employment for a further two months (due to the previous concerns about her performance) and Ms Hayes’ limited efforts at mitigation.
Emily Harvey is Senior Associate at King & Wood Mallesons.