Not Abandonment of Employment by thb59736



                                                                                                           22 July 2005

 The first four cases in this HR Update highlight some key “do’s” and “don’ts” in managing the often complex
 issues of employee absences and illness:

 Not Abandonment of Employment
 In the case of Armand v Australia Post, the                     the consequence of non-attendance on 4 January
 employer was unsuccessful in its argument that the              2005 was that the employer accepted this as
 AIRC did not have jurisdiction to hear the unfair               constituting a resignation at the employee's
 dismissal claim on the basis that the employee                  initiative, unless there was evidence that he had
 abandoned his employment/effectively resigned.                  pre-booked an airfare from Queensland to
 The decision therefore enabled the ex/employee to               Melbourne and had genuinely intended to return to
 elect whether or not to proceed to arbitration.                 his duties but for his illness.
 Conciliations prior to the hearing of the jurisdictional        On 31 January 2005, the employer wrote to the
 issue were unsuccessful.                                        employee to confirm that it considered his non-
                                                                 return to work as an effective resignation.
 The facts of the case included that the Sales
 Executive was granted 12 months leave without                   The AIRC decided that although the worker’s
 pay because of his intention to relocate his family to          motives were “questionable”, there was insufficient
 Queensland, but his job remained in Melbourne.                  reason for the employer to ignore a medical
 The worker (from a Queensland address) and the                  certificate and to consider that the employee did not
 company then exchanged correspondence                           intend to resume work as directed.
 regarding a disputed extension to the Leave
 Without Pay. On 4 January 2005, the worker failed               The VTA will monitor whether this AIRC
 to attend work in Melbourne as directed in writing              jurisdictional decision is appealed and the result of
 by the employer on 29 November 2004, and                        any hearing of the substantive unfair dismissal
 instead he notified the employer by phone that he               claim and further report to members. It appears
 was unwell. He provided a medical certificate the               that an unlawful dismissal claim was not made. At
 following day and a more detailed certificate on 18             this stage, a lesson from this case is the difficulty
 January 2005. On 24 January 2005, the employer                  for employers disregarding medical certificates
 advised the employee in writing that:                           where employees have sick leave entitlements,
                                                                 unless there is evidence which would convince a
 • he had been on unauthorised leave since 14                    tribunal that the particular medical certificate was
     May 2004;                                                   clearly fraudulent or incorrectly issued.
 •   he had not returned to duties on 14 May 2004,               23 June 2005 – A.H. Armand v Australia Post -
     7 October 2004 or 4 January 2005;                           PR959240 - Richards, C

 Employer’s Management of Sick Leave Discriminatory
 It is timely to also remind employers of the need to            absences in a twelve month period allowed without
 observe relevant anti-discrimination laws and to                a certificate under the employer’s sick leave policy.
 correctly quote and reasonably apply employer                   In 1995 he was warned that he had taken sick
 policies when managing absences of staff who                    leave outside the limit of four occasions in a twelve
 have sick leave entitlements. A case that dealt                 month period and that he was required to provide
 with a similar matter was Mooney v NSW Police                   medical certificates for any absences in the next six
 Department in 2003.                                             months. This was an incorrect reference by
                                                                 management to the policy as the four days only
 The facts of the case included that Mr Mooney was               pertained to uncertified absences (not any
 counselled in mid 1993 and mid 1994 about being                 absence) and the facts showed that for the
 absent on sick leave without producing a medical                preceding twelve months.
 certificate for absences exceeding the four                                                          Continued next page

            Victorian TAFE Association                                                                               Page 1
            Level 3/478 Albert Street, East Melbourne VIC 3002
            Ph: (03) 9639 8100, Fax: (03) 9663 7566
                                              Reg. No. A37584B
                                                                                                               22July 2005

Mr Mooney had provided medical certificates for all             Mooney v Commissioner of Police, NSW (No2) [2003]
absences.Mr Mooney subsequently resigned and                    NSWADT 107 (Hennessy DP, Bolt, Pun) 19 May 2003
lodged a claim of discrimination. The NSW             
Administrative Decisions Tribunal found that the                adtjudgments/2003nswadt.nsf/
resignation was in fact a constructive dismissal;               93ca256d2700767c32?OpenDocument
that there was no legitimate suspicion that he was
misusing his sick leave; and that comparable
employees would not have been treated in this

Failure to Properly Notify Absence
On 11 April 2005, the AIRC dismissed the unfair                 •   the employee should have been aware after he
dismissal application of a labourer from a meat                     received a third abandonment of employment
company who had been on a lengthy absence from                      letter and his conversation with the HR Officer
work and who had not provided the employer with a                   that his continued failure to provide the medical
sick leave certificate.                                             certificate to the employer would place his
                                                                    employment in jeopardy.
The labourer said at the Commission hearing that                •   The employer did not provide the employee
he did obtain a medical certificate (part backdated)                with the opportunity to explain his failure to
that he provided to Centrelink at the time he applied               provide it with a certificate.
to it for sickness benefits, and that he thought that
Centrelink would forward the certificate to his                 Not providing an opportunity to respond was not
employer.                                                       fatal to this employer’s case because it was
                                                                weighed against the company providing him with
In terms of the requirements of s170CG(3) of the                about three months to provide the certificate and to
Workplace Relations Act 1996, the Commission’s                  discuss his obligation to provide a certificate.
decision included that:                                         Notwithstanding this, it is recommended that
• the worker did not provide the company with a                 employers should follow the requirement of the Act
    medical certificate to cover his absence;                   to provide an employee with an opportunity to
• in not providing the certificate to the employer,             respond to a reason for dismissal that relates to the
    he failed to follow a lawful direction to provide           employee’s conduct or capacity.
    the certificate;
• the requirement to provide the employer with a                11 April 2005 R.M. Bryant v Australia Meat Holdings -
    medical certificate stating the nature of the               PR957185 - Bacon, C
    illness and likely length of absence was an
    obligation under the enterprise agreement, of
    which he was aware;

Dismissal of University Lecturer Justified despite
Mental Illness
In a split decision, a Full Bench of the AIRC,                  home. Eight students lodged written complaints
although finding some faults with the Commission’s              about the lecturer with the Uni in 2002.
original decision, confirmed that a University was
justified in summarily dismissing an academic                   Key considerations for employers making decisions
employee.                                                       in similar cases can be gleaned from the comments
                                                                of the respective Commission members.
The music lecturer had a bipolar mood disorder.
He was dismissed for his inappropriate behaviour
                                                                                                      Continued next page
that included lifting and tickling female students in
public as well repeated phone calls to one student’s

          Victorian TAFE Association                                                                                    Page 2
          Level 3/478 Albert Street, East Melbourne VIC 3002
          Ph: (03) 9639 8100, Fax: (03) 9663 7566

                                             Reg. No. A37584B
                                                                                                           22 July 2005

Comments by SDP Hamberger and Commissioner                    The usage of terms such a “deliberate” and
Rafaelli in their majority decision, included that that:      protecting students indicate that the AIRC members
                                                              were considering the employee’s actions in relation
•   “the conduct itself was totally unacceptable.             to the definition of “serious misconduct” in
    Any university has a duty of care to protect its          Regulation 30CA of the Workplace Relations Act in
    students from that sort of behaviour by a                 making their respective decisions.
    member of staff, whatever caused that
    behaviour”.                                               Other factors the Commission took into account
•   his “ intermittent approach to seeking treatment          included whether the process leading to the
    for his condition gives us no confidence that he          dismissal was based on specific and up to date
    could be genuinely expected to adhere to close            medical evidence and whether the employee was
    medical supervision”.                                     afforded natural justice.
The decision by SDP Drake differed with the above             27 May 2005 - Shanahan v University of Western Sydney
where she found that the lecturer should be                   - PR958351
reinstated because his behaviour was an “outward    
symptom” of a medical disability and was not

Company Vicariously Liable for $150,000 in Damages due to
Extreme Bullying by Manager
On 24 June 2005, the NSW Supreme Court
ordered a company to pay its contractor’s                     It is also worth reflecting on the differences
employee, $150,000 in exemplary damages due to                between this case where the NSW Supreme Court
its vicarious liability for the extreme bullying              found News Ltd vicariously liable for the contractor
behavior of one of its managers. The employee                 guard’s psychiatric illness compared with the
was a male security guard of a company contracted             Koehler v Cerebos case reported in the VTA’s HR
to News Limited who was bullied by the News Ltd               Update of May 2005, where the High Court found
male Security Manager. The bullying occurred over             that the employer was not liable in tort for the stress
a four year period and included verbal attacks,               related disorder of an employee.
sexual harassment and threats. The worker was
hospitalised for post traumatic stress disorder.              Naidu v Group 4 Securitas and Anor – [2005] NSWSC
The worker did complain to his manager with the               618
contracting company but the contracting company     
said it was not aware of the specific details of the          scjudgments/2005nswsc.nsf/66950614059df523ca25673
                                                              900081e8e/ 91e77edad2fcc31dca25702a000edd21?
incidents. News Ltd said that it terminated the               OpenDocument
managers’ employment as soon as it was aware of
the manager’s conduct. Justice Adams assessed
that News Ltd contributed 65% to the guard’s
illness and the contracting company contributed               AIRC Jurisdiction
35%, but damages of $150,000 were only awarded
against News Ltd.                                             There has been an increase to the annual
                                                              remuneration cap relating to the AIRC’s
The case illustrates the requirement for principal’s          jurisdiction to hear the unfair dismissal claims of
in contracting arrangements and employers to                  non-award employees. From 1 July 2005, the
ensure they have policies and practices, so that              figure is $94,900.
• staff are aware of their duty not to bully other
    staff;                                                    The maximum compensation that the AIRC can
                                                              order for an unfairly dismissed employee was
• staff have a duty to report incidents of                    increased to $47,450 (6 months remuneration).
    misbehavior made against themselves and
    other staff; and
• managers do not to delay in investigating

         Victorian TAFE Association                                                                                 Page 3
         Level 3/478 Albert Street, East Melbourne VIC 3002
         Ph: (03) 9639 8100, Fax: (03) 9663 7566
                                          Reg. No. A37584B
                                                                                                                22July 2005

NSW TAFE Part-Time Casual Teachers Win Further Pro Rata
The VTA office will be monitoring any potential flow-on of the NSW TAFE’s plans to phase-in the provision to
part-time causal staff of the same pro-rata remuneration and entitlements that apply to fixed term teachers.
The requirement for TAFE NSW and the NSW Teacher’s Federation to address this equity issue for part-time
casual teachers stemmed from the broader decision of the NSW IRC in December 2004 regarding teachers’
                                              work value.

    Next VTA HR Network                        It should be noted that the NSW part-time casual TAFE teachers
          Meeting -                            employment mode was already a hybrid mode in that it already
                                               provided pro rata entitlement to some leave provisions under
   Wednesday 10th August                       their Award. NSW TAFE plans to provide part time casual
           2005                                teachers with additional entitlements including additional
                                               payments paid at the teaching duties rate (currently $57.11 per
  The agenda will be emailed                   hour) where teaching duties exceed 10 hours per week. There is
                                               a sliding scale for this depending on the weekly teaching duties.
          out soon.                            For example, a casual part time teacher teaching 15 hours per
                                               week will also be paid for 5 hours of related duties all at the
                                               higher teaching duties rate.

                      For further information concerning this Update contact:

                                                  Jim Andrews
                                         Victorian TAFE Association
                            Level 3/478 Albert Street, East Melbourne VIC 3002
                                   Ph: (03) 9639 8100, Fax: (03) 9663 7566


                                                    Reg. No. A37584B

                Note that this HR Update is prepared by the VTA for the general information of member
             While it provides general background on the selected topic, advice should be sought in the first
                       instance from the VTA office before acting on the material contained herein.

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