Personal leave: what happens when an employee refuses to communicate?


A recent Federal Circuit Court decision has provided guidance on the dismissal of an employee for failing to attend a medical assessment during an extended period of personal leave – and for failing to communicate updates on his return to work.

The employee was found to have “shut down” all communication with the employer during the period of personal leave and then to have “use[d] his self-imposed ignorance not even as a shield but as a sword.”

The former Fair Work Ombudsman employee alleged he was a victim of unlawful discrimination due to the fact that he was suffering a disability and was simply exercising a workplace right to take personal leave. In 2010, he alleged he was bullied in the workplace and that there was a conspiracy to sack him. In late 2014, he said he couldn’t work due to depression and stress-related illness and that he was acting on doctor orders to avoid “any work or workers compensation matters”.

The Federal Circuit Court held the employee failed to meet his obligation to the employer to advise he was cutting all contact during his absence. It found the employee was aware of his duty to attend medical assessments and chose to ignore these responsibilities to his employer. To rule in his favour, the court concluded, would be to essentially uphold an ‘absurd outcome’.

Indirect discrimination?

The employee contended the dismissal was indirectly discriminatory because he was dismissed for failing to comply with a requirement (to attend an assessment) with which he could not comply (because he could not communicate to receive it).

The Court found that the employee both knew of the assessment and did not have a disability that precluded him from attending an assessment, concluding:

“The employee is no more a victim of discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man who closes his eyes so that he cannot read written instructions either”

What is the lesson for employers?

While employees have an obligation to keep their employer reasonably updated regarding absences and return-to-work, employers are entitled to request evidence (in accordance with the National Employment Standard or relevant awards/enterprise agreements) to support an employee’s absence on personal leave. This is usually a medical certificate, or statutory declaration where this is unreasonable or impractical. Further, employers should seek advice on their rights to discipline employees who repeatedly abuse their leave entitlements.

However the risks do become greater when managing these matters. If an employee successfully challenges a dismissal on the prohibited grounds of disability or for a temporary absence from work due to illness or injury, employers can be exposed to reinstatement, compensation orders and/or civil penalties.

Nevertheless, employees absent from work due to illness or injury are not untouchable and they are not entitled to ignore lawful and reasonable directions of the employer.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.

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Dan Erbacher
Dan Erbacher
6 years ago

Thanks for the update Fay. Information about these sort of cases is invaluable.

Lyne Mear
Lyne Mear
6 years ago

I think the time frame associated with this case is relevant and significant. For example; if an employee is on leave for a week or even a month the decision may have been entirely altered – in this case the length of time on personal leave was protracted.

Mathew
Mathew
6 years ago

This information is great as we have an ongoing case similar to this where the employee has been absent for a number of months. His only communication is to provide medical certificates despite numerous requests to communicate with the company.

This information needs to be systematised in some format to assist managers and businesses with these types of issues.

Thanks again for the article.

trackback
The importance of compliance with enterprise agreement obligations – Reapfield Properties
1 year ago

[…] contraventions occurred when an employee, who had been off work on extended personal leave and WorkCover following complaints of bullying and harassment, provided the Victorian Public Health […]

More on HRM

Personal leave: what happens when an employee refuses to communicate?


A recent Federal Circuit Court decision has provided guidance on the dismissal of an employee for failing to attend a medical assessment during an extended period of personal leave – and for failing to communicate updates on his return to work.

The employee was found to have “shut down” all communication with the employer during the period of personal leave and then to have “use[d] his self-imposed ignorance not even as a shield but as a sword.”

The former Fair Work Ombudsman employee alleged he was a victim of unlawful discrimination due to the fact that he was suffering a disability and was simply exercising a workplace right to take personal leave. In 2010, he alleged he was bullied in the workplace and that there was a conspiracy to sack him. In late 2014, he said he couldn’t work due to depression and stress-related illness and that he was acting on doctor orders to avoid “any work or workers compensation matters”.

The Federal Circuit Court held the employee failed to meet his obligation to the employer to advise he was cutting all contact during his absence. It found the employee was aware of his duty to attend medical assessments and chose to ignore these responsibilities to his employer. To rule in his favour, the court concluded, would be to essentially uphold an ‘absurd outcome’.

Indirect discrimination?

The employee contended the dismissal was indirectly discriminatory because he was dismissed for failing to comply with a requirement (to attend an assessment) with which he could not comply (because he could not communicate to receive it).

The Court found that the employee both knew of the assessment and did not have a disability that precluded him from attending an assessment, concluding:

“The employee is no more a victim of discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man who closes his eyes so that he cannot read written instructions either”

What is the lesson for employers?

While employees have an obligation to keep their employer reasonably updated regarding absences and return-to-work, employers are entitled to request evidence (in accordance with the National Employment Standard or relevant awards/enterprise agreements) to support an employee’s absence on personal leave. This is usually a medical certificate, or statutory declaration where this is unreasonable or impractical. Further, employers should seek advice on their rights to discipline employees who repeatedly abuse their leave entitlements.

However the risks do become greater when managing these matters. If an employee successfully challenges a dismissal on the prohibited grounds of disability or for a temporary absence from work due to illness or injury, employers can be exposed to reinstatement, compensation orders and/or civil penalties.

Nevertheless, employees absent from work due to illness or injury are not untouchable and they are not entitled to ignore lawful and reasonable directions of the employer.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.

Subscribe to receive comments
Notify me of
guest

4 Comments
Inline Feedbacks
View all comments
Dan Erbacher
Dan Erbacher
6 years ago

Thanks for the update Fay. Information about these sort of cases is invaluable.

Lyne Mear
Lyne Mear
6 years ago

I think the time frame associated with this case is relevant and significant. For example; if an employee is on leave for a week or even a month the decision may have been entirely altered – in this case the length of time on personal leave was protracted.

Mathew
Mathew
6 years ago

This information is great as we have an ongoing case similar to this where the employee has been absent for a number of months. His only communication is to provide medical certificates despite numerous requests to communicate with the company.

This information needs to be systematised in some format to assist managers and businesses with these types of issues.

Thanks again for the article.

trackback
The importance of compliance with enterprise agreement obligations – Reapfield Properties
1 year ago

[…] contraventions occurred when an employee, who had been off work on extended personal leave and WorkCover following complaints of bullying and harassment, provided the Victorian Public Health […]

More on HRM