An Introduction to the Dispute

In an interesting case of an unfair dismissal claim, Mr Fe Ben Acal, a former maintenance fitter at JBS Australia Pty Limited’s Rockhampton Plant, was let go on 2 October 2019 due to what the company labeled as ‘serious misconduct.’ The company argued that Mr. Acal walked off the job, thereby abandoning his position. Mr. Acal, on the other hand, saw things differently and launched an unfair dismissal case against JBS Australia.

The Background

On 27 July 2019, Mr. Acal suffered a workplace accident, resulting in a laceration to his left little finger. He received a warning for not adhering to safety procedures and was also on Workers’ Compensation. A medical professional provided him with a capacity certificate that limited his tasks to ‘light duties’, specifying that he could not lift anything with his injured hand and was to wear a splint at all times.

Fast forward to 2 October 2019; Mr. Acal reported to the on-site first aid center claiming a further injury to his already injured finger. The cause, he claimed, was being asked to carry out tasks that went beyond his approved light-duty rehabilitation plan, specifically, the use of a high-pressure hose. He intended to report the incident and subsequently obtain a medical certificate from a GP for his absence.

The Company’s Stance

JBS Australia questioned the cause of Mr. Acal’s additional injury, suggesting it might have occurred outside of work. While they acknowledged his visibly swollen finger, they sought to discuss with him about his injury before he left for the doctor’s appointment, claiming concern over his adherence to his rehabilitation plan. They argue that Mr. Acal, unresponsive to their inquiries, walked out of the workplace, an action they interpreted as abandonment of employment. This was disputed by Mr. Acal, who did not recall hearing any warning to this effect.

The Legal Question

The crux of the legal question before the Fair Work Commission (FWC) centered around section 385 of the Fair Work Act 2009 (Cth) (FW Act), which defines what constitutes unfair dismissal. In particular, whether:

• There was a valid reason for Mr. Acal’s dismissal?
• Was the company within its rights to insist on Mr. Acal remaining at work on 2 October 2019 to discuss his further injury?
• Did Mr. Acal’s departure constitute serious misconduct?
• Was the dismissal harsh, unjust, or unreasonable?

The Decision

In a significant ruling, the FWC found the dismissal of Mr. Acal to be harsh, unjust, and unreasonable. They concluded that although Mr. Acal wasn’t blameless in the chain of events leading to his dismissal, the company’s assumption of his abandoning his job when he was visibly injured and had procured medical certificates for his absence, wasn’t reasonable.

The FWC highlighted that an employment abandonment occurs when an employee, without a justifiable reason, fails to attend work or leaves, leading the employer to reasonably conclude that the employee no longer intends to be bound by the contract of employment.

They noted that the company’s questioning of Mr. Acal on 2 October 2019 wasn’t urgent and could have been postponed until his return. They acknowledged that Mr. Acal’s finger was swollen and injured, and that he was unfit for work. Deputy President Asbury added that it wasn’t unreasonable for the company to inquire about the circumstances of the incident but emphasized that the company had no valid reason for dismissal, thereby adding to the unfairness of their treatment towards Mr. Acal.

Conclusion

This case underscores the importance for employers to exercise caution before dismissing an employee due to ‘abandonment,’ especially if the employee provides a valid reason, such as a medical certificate, for their absence. It also demonstrates that summarily dismissing an employee without notice and without adhering to the proper procedure, is likely to be deemed harsh. Equally important, employees are reminded to prioritize their wellbeing and refuse tasks that go beyond their rehabilitation plan. Employers must respect their duty of care to employees and refrain from assigning tasks that could further injure an employee, especially when the employee has provided a medical certificate confirming their incapacity to work

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