Inghams loses unfair dismissal case – even after worker “abandoned” his job

Food giant Inghams Enterprises has lost an unfair dismissal case against an employee who was judged to have abandoned his employment, but received harsh treatment from the company due to his experience and medical situation.

The case is an example of what can happen when employees “abandon” their jobs, one expert says, pointing out the incident also provides lessons for companies which are self-insured for workplace medical accidents.

“This should serve to make companies which are self-insured feel more comfortable about their decision,” says Andrew Douglas, partner at M+K Lawyers.

Inghams issued a statement this morning, saying the company “does not wish to make comment in relation to Fair Work Commission decisions”.

The employee, Nazar Lazar, was terminated in May 2012 for allegedly being absent without authorisation. In 2009, he suffered a lower-back injury for which he made a successful claim, while in 2011 he reported an injury to his shoulder and neck, for which a claim was not received.

Lazar was required to provide medical certificates explaining any absence.

In 2012, Inghams wrote to Lazar saying it had not received any contact from Lazar to explain a continued absence.

“Since the last medical certificate was provided, you have not been contacting the Company to advise the reason for your absence, any evidence of these reasons and the expected length of your absence,” it said in the correspondence.

It also pointed out that in the company’s workplace agreement, if an employee is absent from work for three days, it can be assumed they have abandoned their employment. Lazar’s employment was subsequently terminated.

The Fair Work commissioner found it “should have been apparent” to Lazar that to keep his job, he should have remained in some form of contact.

But the commissioner also found Lazar had been employed for some time, and given his medical and financial situation, the decision to terminate his employment was harsh but not unjust or unreasonable.

Ingham’s has been ordered to pay Lazar a total of eight weeks’ wages. The amount would have been higher, but the commissioner said Lazar’s behaviour had reduced the total.

Douglas argues the case is a good example of what happens when an injured worker needs to remain in contact with their employer, as per common agreements within companies that are self-insured and have to manage their own affairs.

“The problem here is that he was required as part of his compensation management to demonstrate he wasn’t fit for work, and if there were changes, they would need to know straight away.”

“He chose not to do that…and if they don’t have that contact, they have to assume he no longer wishes to work there.”

But because the actual termination of the employment is categorised as being made by the employer, Lazar was able to argue this was unfair dismissal.

Douglas points out the decision was judged as harsh due to Lazar’s prospects of further employment, medical and financial situations. But he says this is a good example of a self-insured company operating properly in mandating an employee keep in regular contact.

“This should give comfort to self-insured companies.”