Employer Loses Unfair Dismissal Case in Principle

Ingham has lost an unfair dismissal case against an employee who had abandoned his job in Lazar v Inghams Enterprises Pty Ltd [2013] FWC 3447. However it was only a loss in principle as the Fair Work Commission had found Ingham’s action to be harsh but not unjust or unreasonable.

The employee, Nazar Lazar, had his employment terminated in May 2012 for absence without authorisation. Lazar had suffered injuries to his shoulder and neck resulting in his absence from work. He was required to provide medical certificates explaining his absence but did not respond to this nor any further requests from Ingham. The company had pointed out in its letter that as per the workplace agreement, absence for more than three consecutive days without explanation would be judged as abandonment of the position. The FWC found that it “should have been apparent” to Lazar that to keep his job, he needed to maintain some sort of contact with his employer.

The FWC found that the decision to dismiss was a harsh one and amounted to an instance of unfair dismissal. However, Lazar was required to demonstrate he wasn’t fit for work and he had elected not to do this and thus mitigated his claims to compensation. The FWC ordered that Ingham pay 8 week’s wage to Lazar as compensation. His behaviour had significantly reduced his entitlements.

Andrew Douglas, a partner at M+K Lawyers, reflected that the case was a good example of what happens when an injured worker needs to remain in contact with an employer. He stated that this should give comfort to self-insured companies.

Read more here.

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