A field service technician based in Bendigo but working in the remote mining site in Pilbara, WA lodged an unfair dismissal claim in May 2022 after receiving a letter of termination.

The employee had previously worked on site for 17 straight months from March 2020 due to COVID-19 border closures, and prior to that worked a schedule of two weeks on and one off. During this time, he would return home to Bendigo to visit his family.  

Shortly after, the applicant returned home due to a workplace injury, and for a period took on a caring role for his young children while his wife worked locally. When the applicant eventually returned to work, his wife advised him that the children could not cope with his absence and that his work had detrimental effects on his marriage.

Consequently, the applicant flew home despite being advised by his employer that leave needed to be approved before departing.

In turn, his employer attempted to direct the employee to formally apply for leave with supporting evidence, provide clear detail about how long he would be on leave, and what date he would return. However, the applicant failed to respond to several communications from management and the HR department.

Management followed the process of abandonment of employment, as per its enterprise agreement. This included issuing a letter outlining the sequence of events and consequences of failing to notify the company. The applicant did not respond within the required time frame, and failure to notify was accepted as his resignation. He was paid in lieu of notice.

Decision

Deputy President Peter Anderson held that the dismissal was valid, and that the dismissal was not procedurally unfair. Whilst FIFO workers face many difficulties in balancing work and family responsibilities, the technicians’ actions were found to be “indifferent” to his obligations to the company.

The FWC found that failing to “meet fundamental obligations such as seeking authorised leave of absence or advising his specific intentions” represented a valid reason for termination, in the context of repeated warnings and directions to do so.

Learnings for Business

This case outlines the importance of maintaining clear communication with employees, particularly in relation to expectations and procedures around accessing leave entitlements.

More importantly, this case reinforces the requirement to observe procedural fairness and to follow the relevant disciplinary procedure. This ensures potential risks are mitigated and provides a solid foundation to challenge unfair dismissal or general protections claims, should they arise.

How the Victorian Chamber can assist

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

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