A recent case before the Federal Circuit Court of Australia considered the claim of an employee who argued that he was dismissed because he suffered from a medical condition. Rather, the Court found that he was dismissed for failing to communicate with his employer about his medical condition.
The employee, Mr Laviano, was absent from work for most of 2014 due to the effects of a psychological illness. In late 2014, Mr Laviano’s psychologist advised him to not contact his employer and to avoid attending work or any work compensation matters. Mr Laviano did not communicate this to his employer.
His employer, the Fair Work Ombudsman, required that Mr Laviano attend a medical assessment so it could assist him return to work. Mr Laviano failed to attend on five (5) occasions, and was late on one (1) occasion which resulted in the assessment being incomplete. Mr Laviano claimed that because of his psychologist’s advice, he did not know about one of the appointments until he returned to work for a day in December 2014.
On 9 January 2015, Mr Laviano’s employer terminated his employment for non-performance of his duties on the basis that he failed to attend the medical assessment. Mr Laviano disagreed, and claimed that his employment was terminated on the basis of disability discrimination, being that he was unable to comply with this requirement because of his disability. He filed a General Protections Claim stating, among other things, that he was dismissed because he had exercised his workplace right to take periods of leave due to his disability.
Decision
The Court dismissed the case and found that Mr Laviano had a duty to communicate with his employer at relevant times and that it was unreasonable to “shut down” all communication. The Judge did not accept that Mr Laviano’s illness prevented him from attending the medical assessment. On the facts in this case, Mr Laviano was required to tell his employer that he would not be opening and responding to correspondence for a certain period of time and that it was open to him to contact his employer either directly or through a third party to ensure his employer was updated on his progress and eventual return to work.
Take away points for employers
The case demonstrates that even when an employee is suffering from an illness, an employer is permitted to contact that employee to enquire about their progress and return to work. While each case turns on its facts, the case illustrates that an employee cannot wilfully ignore communication from their employer. If you are dealing with an employee in such circumstances, you should seek legal advice before acting or relying on any of the content of this article.
Take away points for employees
If you are an employee, are unwell and will be on long term leave, you may continue to have obligations to your employer and you should seek legal advice to ensure you understand and comply with these obligations.
Emma Riggs is an experienced industrial lawyer and is available to assist you in determining the appropriate course of action.
