Fair Work Australia (FWA) has ruled that a mine worker hadn’t abandoned her employment when she relocated to another town while on workers compensation leave.

In May 2009 the worker, who was employed to drive trucks at a coal mine in central Queensland, was involved in an accident during the course of her employment. The accident led the worker to suffer both a physical injury to her lower back and a subsequent psychological injury. She received workers compensation payments and was certified unfit to return to work until November 2009.

During the time she was incapacitated, the worker moved to Bundaberg, some 700 km from the mine, and her employer MCG Pty Ltd (MCG). In October 2009 MCG wrote to the worker asking her to return to her job. When she didn’t, it presumed that she had abandoned her employment according to the definition contained in the enterprise agreement and that the employment contract had subsequently ended.

The worker brought an unfair dismissal claim under s 385 of the Fair Work Act 2009 (FW Act) on the basis that she had not left employment and the termination was at the initiative of the employer. FWA accepted the worker’s claim.

In doing so, FWA noted that the breach of a clause such as the one in the worker’s agreement did not automatically mean that employment had ended. Instead, it was necessary to examine the conduct of both parties to determine who had brought the employment contract to an end.

On this occasion, the worker had been asked to return to work when she was medically unfit to do so. Moreover, a letter she had received from MCG’s solicitors on 10 November telling her she needed to return to work made it clear that MCG’s legal advisers did not think that she had already abandoned her job.

FWA also ruled that, 10 days after that letter, MCG was aware that the worker was obtaining further medical opinion about her injuries and intended to remain bound by her employment contract. However, she did not provide any further certification because on 20 November 2009 she received formal notice from MCG that the employment contract had ended.

FWA concluded that moving towns was no indication of the worker’s intention to leave the job because she was totally incapacitated and could not attend the workplace regardless of where she was located. There was also no evidence that her relocation was intended to be permanent.

Sharpe v MCG Group Pty Ltd [2010] FWA 2357 (22 March 2010).

www.fwa.gov.au/decisionssigned/html/2010fwa2357.htm