Employee who quit his job to obtain a medical certificate for injury was dismissed for abandonment – Emploi et RH

Australia: Employee who quit his job to obtain a medical certificate for an injury was dismissed for abandonment

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M. Fe Ben Acal v JBS Australia Pty Limited [2020]CC 5554

Mr. Fe Ben Acal (the Applicant) was employed at the Rockhampton plant as a maintenance installer until terminated for gross misconduct on October 2, 2019. JBS Australia Pty Limited (the Respondent) claimed that the applicant quit his job when he left his job. The Applicant filed a complaint for unfair dismissal against the Respondent.


On July 27, 2019, the Applicant had a work accident which resulted in a laceration on his left little finger. The requester received a warning due to failure to follow the appropriate security protocol. The plaintiff was also in receipt of workers’ compensation and had been issued a certificate of competence stating that he should not lift anything with his left hand and that he was able to perform “light tasks while wearing a suit. splint at all times ”. He also had to come to the medical center twice a day.

On October 2, 2019, before the start of the working day, the Applicant attended the first aid center at the Respondent’s site to report a new injury to his finger, which was the subject of a request for compensation for work-related accidents in progress. The Applicant testified that his finger was injured more because the day before he had been asked to do work that was outside his rehabilitation plan, which was using a hose. high pressure. He had arrived at work that day with the sole intention of reporting the incident, the seriousness of which had only become apparent that morning, and then proceeding to obtain a medical certificate from a general practitioner. to cover the period of his absence.

The Respondent wondered whether the additional injury was caused by his duties or by something the Applicant did at home. The Respondent admitted that the Applicant’s finger was visibly swollen when he went to the first aid center to report the incident. The Grievor’s managers attempted to speak to him before he left work to see a doctor, stating that this was because they were concerned about the Grievor’s rehabilitation and whether he was following the rehabilitation plan. The applicant was not receptive to this “interrogation” and left. Managers said they had informed him that his departure would be considered a termination of his job. The applicant did not recall hearing this.

On several occasions, the claimant had received warnings for leaving work due to discomfort, without notifying HR, and for failing to follow occupational health and safety protocols by trying to stick himself the laceration on his finger and thus risk injuring him further. .


  • Was there a valid reason for the dismissal of the Applicant?
    • In particular, was the Respondent entitled to require the Applicant to remain at work on 2 October 2019 for an interview regarding his new injury?
    • If so, was the Applicant’s failure to stay at work serious misconduct?
  • Was the termination severe, unfair or unreasonable?


Section 385 of the Fair Work Act 2009 (Cth) (FW law) defines what an unfair dismissal is:

A person has been unfairly terminated if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the termination was severe, unfair or unreasonable; and

(vs) the dismissal did not comply with the fair dismissal code for small businesses; and

d) the dismissal was not a case of actual dismissal.

(added emphasis)


The Fair Labor Commission (CC) found the dismissal to be severe, unfair and unreasonable. It concluded that while the Applicant was not faultless in the events leading up to his dismissal, it was unreasonable for the Employer to assume that the Applicant had given up his job when he was visibly injured and had provided adequate medical certificates. for his absence.

The FWC said that:

“Abandonment of employment occurs when an employee leaves work or does not report after a period of absence, such that the employer is reasonably entitled to conclude that the employee no longer has the intention to be bound by his employment contract. “

The FWC noted that the Applicant’s questioning by the Respondent on October 2, 2019 was not urgent and could have been discussed once the Applicant returned to work. It was admitted that the Applicant’s finger was swollen and injured, and that the Applicant was unable to work. Vice President Asbury added that it was not unreasonable of the Respondent to ask the Plaintiff questions and the Respondent was entitled to ask why the Plaintiff had gone beyond his rehabilitation plan. The vice president was also convinced that the plaintiff understood that the defendant did not want him to leave, but ignored this and left the site.

The FWC held that there was no valid reason for termination and that the fact that the claimant was terminated without notice only added to the unfairness with which the claimant was treated.

Back to home

Employers should be careful before terminating employment due to an employee’s “abandonment” of the role, especially when the employee has an appropriate explanation for his absence, such as a medical certificate. Likewise, summarily dismissing an employee without notice and without following the proper procedure, is more likely to lead to a finding of a certain harshness in the dismissal process. Conversely, employees are expected to take responsibility for their own well-being and refuse tasks if they fall outside the scope of any rehabilitation plan to which the employee is subject. Ultimately, the employer owes a duty of care to its employees, and it must ensure that its employees are not assigned to tasks that could cause them further injury and be aware that an employer cannot not legally order an employee to go to work if the employee is disabled and a medical certificate has been provided.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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