Fair Work Commission Rejects Abandonment of Employment Claim: $30,000 Compensation Awarded to Employee Represented by Michael Alkan of HR Experts

A decision of the Fair Work Commission has reinforced the risks for employers who presume that an employee’s absence amounts to abandonment of employment. In Ah San v Shamrock Consultancy Pty Ltd, the Commission ordered significant compensation after finding that the employer’s approach was neither fair nor reasonable.

Background

Ms Ah San, represented by Michael Alkan, principal of HR Experts, worked as a Business Development Manager with Shamrock Consultancy Pty Ltd. During the early months of the COVID-19 pandemic in 2020, Ms Ah San experienced health issues and was unable to obtain a negative COVID-19 test result, which her employer required before she could return to work.

While she was away, she remained in frequent contact with Shamrock, providing medical certificates and regular updates. Despite this, on 15 April 2020 Shamrock issued a letter asserting she had abandoned her employment, effectively terminating her position.

First Instance Decision

Deputy President Cross found that Ms Ah San had not abandoned her employment and that the termination amounted to an unfair dismissal. Key factors included:

Ms Ah San had contacted Shamrock at least a dozen times between late March and early April 2020.

1. Her lack of communication during the final week was insufficient to justify the assumption of abandonment, especially given her prior efforts to comply with medical requirements and the employer’s obligations to clarify expectations.

2. Shamrock did not clearly warn Ms Ah San that failure to reply within a specified timeframe would result in termination.

3. The Commission ruled the dismissal was harsh, unjust and unreasonable and awarded Ms Ah San $30,000 in compensation, plus superannuation.

Appeal to the Full Bench

Shamrock appealed the decision on multiple grounds, including:

1. Alleged procedural errors and apprehended bias;

2. Claims that the Deputy President had misunderstood the evidence or made errors of fact;

3. An argument that the compensation award was excessive.

The Full Bench (Vice President Catanzariti, Deputy President Anderson, and Commissioner Cirkovic) rejected each argument, finding no appealable error. It observed that Ms Ah San’s efforts to maintain contact and her inability to get tested due to pandemic constraints were reasonable explanations for her absence.

Key Lessons for Employers

The case underscores the pitfalls of assuming employment has been abandoned without clear communication and evidence. As the Full Bench confirmed, even prolonged absence will not support an abandonment claim if:

1. The employee continues to engage with the employer about their circumstances;

2. There is no explicit warning that failure to respond will be treated as a repudiation of the employment contract.

The Role of HR Experts

This outcome demonstrates the importance of skilled representation in workplace disputes. Michael Alkan, acting on behalf of Ms Ah San, successfully challenged Shamrock’s assertions and secured a significant compensation outcome. The case reinforces that employees have protections against assumptions of abandonment, especially when health and safety considerations are involved.