Workers’ duty to communicate when absent through illness

Posted on April 13th, 2017

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Even when absent due to legitimate illness or injury, workers have to stay in communication with their employer, or they may be dismissed. 

Mr Laviano was absent from work for an extended period due to a psychological injury.  He had received medical advice not to read or access any communication from his employer for a part of that absence – a period of about two months – but that advice was not passed onto the employer.  During this time, the employer wrote to him advising of a medical appointment.  

Mr Laviano did not attend it.  His employment was later terminated on the basis that he did not perform his duties as an employee because he failed to attend the appointment.  Mr Laviano commenced an adverse action claim, contending the employer had taken adverse action against him because he exercised a workplace right to take extended leave due to his disability (the psychological illness).

The case was dealt with in the Federal Circuit Court of Australia.  Whilst it accepted Mr Laviano had a psychological illness and that he had received medical advice not to open mail etc; it did not accept that Mr Laviano could, in the Court’s words, ‘shut down’ all communication with his employer and then rely upon that decision to assert adverse action had been taken against him in employment.  Relevantly, the Court was not satisfied that Mr Laviano was ‘unable’ to communicate with his employer for the whole of the period of his absence. It decided that it was unreasonable on his part not to have told the employer about his medical advice not to communicate, for at least part of the period of his absence.

At least two points of interest emerge from the case.  Firstly, the Court confirmed that when considering an adverse action claim, the focus of enquiry is not whether the termination of employment was ‘harsh, unjust or unfair’; but rather, on the reason or reasons behind the employer’s decision to terminate.  In this case, the Court found the employer’s decision to terminate was solely on the basis that Mr Laviano did not comply with reasonable direction to attend the medical examination (which was itself directed to assisting him return to work).

Secondly, the Court found that Mr Laviano had a positive duty to communicate with his employer, even during the period of absence for reasons of personal illness.

The finding, that a positive duty to communicate exists, may be of assistance to employers who are sometimes frustrated when workers are absent on leave for extended periods and the employer needs to make operational decisions about how its business will be conducted.  Obviously enough, having some sense of the likely duration of a worker’s absence can be relevant to operational decisions of that kind.  The Laviano case may provide some ‘leverage’ for employers to press uncommunicative absent workers for information about their absence:  Laviano v Fair Work Ombudsman [2017] FCCA 197.

Tony Cavanagh Director at Mullane & Lindsay Solicitors NewcastleTony Cavanagh is a Director at Mullane & Lindsay Solicitors and practises extensively in Commercial dispute resolution and litigation, and employment law. If you require any assistance in these areas please contact Tony Cavanagh or contact our Newcastle or Sydney office. 

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