The Case

Mr Laviano, who was an employee of the Fair Work Ombudsman (FWO), was not able to attend work between March and December 2014. Mr Laviano alleged he was suffering depression and anxiety, which had been caused by his work environment.

Between June and November 2014, the FWO directed Mr Laviano to attend six medical examinations. The FWO wished to ascertain whether Mr Laviano could return to work to perform the inherent requirements of his position.

Mr Laviano attended one medical appointment, however the assessment could not be completed because he arrived late. Mr Laviano failed to attend the other medical appointments.

In September 2014, Mr Laviano ceased all communication with the FWO. Mr Laviano instructed his doctors not to speak to the FWO, revoking the authority he had provided for the FWO to communicate with his doctors.

In January 2015, the FWO terminated Mr Laviano’s employment. The reason was his failure to attend the medical examination on 27 November 2014 and because he had ceased all communication with the FWO between September and December 2014.

Mr Laviano lodged a general protections claim. He alleged the FWO had terminated his employment because he suffered a disability and had exercised the workplace right to take sick leave.

Mr Laviano claimed due to his disability he was not fit for work between October and December 2014. He alleged his doctors advised him not to open mail from the FWO and not to contact them so he could focus on his medical treatment. As such, he had missed the notification about the medical appointment. Mr Laviano did not inform the FWO of this medical advice until 15 December 2014.

Verdict

The Federal Circuit Court dismissed Mr Laviano’s general protections claim. It found that Mr Laviano had not been dismissed because he exercised a workplace right or because of a disability. While the Court accepted that Mr Laviano had an illness that made him unfit for work, this did not prevent him from attending medical examinations or communicating with the FWO.

The Court found that it was not reasonable for Mr Laviano to cease all communication with the FWO. Mr Laviano had an implied duty to communicate with the FWO either directly or by a third party about his progress and to attend medical examinations.

The Court said, ‘it was unreasonable, in all the circumstances, for [Mr Laviano] to simply, and in effect, shut down all communication between the FWO and himself given the circumstances and the history of his relationship with the FWO, and then to use his self-imposed ignorance not even as a shield but as a sword, in the present proceedings’.

Lessons for you

You are permitted to contact an employee when they are absent from work due to illness or injury to enquire about their progress and return to work.

An employee cannot ignore your communications even when they are suffering from an injury or illness, and they must communicate with you about the progress of their medical conditions and their future return to work.

If an employee stops communications with you while they are on sick leave, you may be able to rely on this to take disciplinary action against them. In extreme circumstances such as in this case, the employee’s employment may be terminated.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.