28 Jul Case Brief: Assuming abandonment of employment reasonable

In the recent case of Debora Tavares Alves v The Trustee For T.C. Future Investment Unit Trust [2025] FWC 2045, the Fair Work Commission (“FWC”) highlighted two issues of interest as follows: 

• Issue 1: Whether a general protections claim that was lodged three weeks after the 21-day deadline should still be heard.

• Issue 2: If the first issue was found in the Applicant’s favour, whether the employer breached sections 351 (relating to discrimination based on physical and mental disability) and/or section 352 (relating to the Applicant’s temporary absence from work) of the Fair Work Act 2009 (Cth) by ending the employment relationship.

FACTS

The facts of this case are as follows:

• The Applicant was the Office Manager of her employer, The Trustee for T.C. Future Investment Unit Trust t/a CNA Accountants (“CNA Accountants”);

• On 8 November 2024, the Applicant called in sick with a “migraine”;

• On 11 November 2024, the Applicant’s daughter informed CNA Accountants that the Applicant had been hospitalised due to stress-related and mental health issues.  A medical certificate covering an absence from 11 November to 17 November 2024 was provided.

• On 18 November 2024, CNA Accountants’ Director sought further information from the Applicant’s daughter, who said the Applicant needed to “temporarily step back from work” and that CNA Accountants should consider hiring a replacement.  However, no timeline for the Applicant’s return was provided, and no further updates or medical certificates were submitted.

• Between 18 November 2024 and 16 December 2024, CNA Accountants attempted to contact the Applicant and her daughter without success.

• On 16 December 2024, CNA Accountants sent a letter via both post and email asking the Applicant for any updates or documents within two (2) weeks. 

• After no response was received from the 16 December 2024 letter, CNA Accountants formally ended the Applicant’s employment on 15 January 2025 with five (5) weeks’ notice, recording the cessation as an abandonment of employment.

• The Applicant subsequently made a general protections claim.  Within this claim, the Applicant revealed that on 10 November 2024, she attempted suicide, resulting in serious injuries and hospitalisation under involuntary admission, with police involvement.  The Applicant provided medical evidence showing diagnoses of PTSD, generalised anxiety disorder and major depression, with an estimated two (2) year recovery timeline. 

• The Applicant made her claim on 2 April 2025, being 21 days late and outside the 21-day timeline allowed for general protections claims.  The Applicant claimed that her “medical incapacity” fulfilled the definition of “exceptional circumstances” and that she should therefore be granted a time extension to file her claim.

The Decision

First, Commissioner Perica granted the extension of time to file the claim, recognising the exceptional nature of the Applicant’s medical emergency and the severity of her condition.  Despite the delay not being fully explained (i.e. her medical emergency did not occur in the 21 days where she failed to file her claim), Commissioner Perica determined that the seriousness of the illness justified an exception.

Commissioner Perica then turned to the Applicant’s substantive general protections claim and ultimately found that CNA Accountants had not initiated the dismissal.  Rather, Commissioner Perica found that there had been an abandonment of employment.  Commissioner Perica detailed that the test for abandonment is objective, being “whether a reasonable employer would view the employee as having repudiated their contract”.

Commissioner Perica determined that CNA Accountants had acted reasonably given the lack of further communication, medical updates, or indication of return.  Further, Commissioner Perica highlighted that the Applicant (and her daughter) had not disclosed the full extent of the trauma or clarified her incapacity to work, despite CNA Accountants’ extensive efforts to obtain this information.

The Applicant’s general protections claim was therefore dismissed, based on the finding that her termination was not initiated by CNA Accountants but was rather validly considered abandonment of employment. 

To read the case, click on the link below:

https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwc2045.pdf