In this update we discuss the recent findings in Ah San v Shamrock Consultancy Pty Ltd [2020] FWC 5364 and the important lessons for employers arising out of this decision.
Facts
The employer advised the employee that its policy during the pandemic stipulated that an employee could not return to work following illness, unless a medical clearance was obtained confirming that the employee was no longer required to isolate. A negative COVID-19 test was said to constitute such a clearance.
The employee was dismissed for abandoning her employment when she failed to respond to requests for an update about testing, including over the Easter weekend. The employee had been in communication with her employer numerous times previously in relation to this issue.
Decision
The Commission applied the following test for abandonment of employment:
"The test is whether the employee's conduct is such as to convey to a reasonable person in the situation of the employer the renunciation of the employment contract as a whole or the employee's fundamental obligations under it."
The Commission found the employee was reasonably responsive to the employer's inquiries and that she took a number of steps to obtain a test result for COVID-19. This included travelling for three and a half hours to a hospital for a five minute consultation. Accordingly, the Commission could not conclude that a reasonable person would have formed a view the employee had abandoned her employment. The employee had contacted the employer on a number of occasions, had provided one or two medical certificates, and had taken significant steps to attempt to satisfy the employer's testing requirement.
The Commission noted that a difficulty that arose was that the employer imposed a testing regime which required a negative COVID-19 test, at a time during the pandemic period when the availability of such testing was very limited.
The Commission therefore found that the employee had been "dismissed", although the employer did not have a valid reason to dismiss her. The Commission made an order for payment of compensation of four months' pay less tax.
Conclusion
This decision highlights for employers the importance of ensuring they do not impose unreasonable return to work requirements on employees returning from illness, particularly during an unprecedented pandemic such as COVID-19.
If you require further information or have any queries in relation to this legal update, please contact Mark Curran or Matthew Smith.
