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April 17, 2019 on chapter Ill or injured employees

Do we have to keep a job open during an indefinite period of leave?

I have a full-time worker who is currently on suitable light duties due to an injury. His certificate of capacity says he can do suitable, light duties for 2 months. This 2-month period ends in 5 weeks.

This employee has called to advise he needs to go overseas immediately to be with a dying relative and he doesn’t know when he will return.

We are not in a position to be able to hold the position indefinitely. Our company policy states that if an employee is unable to advise a return date from a period of unpaid leave, they are required to resign and can be re-employed when a suitable position becomes available. This employee has
refused to resign.

We have advised our insurance company that he is going overseas and we are not sure what the ruling is in regard to workers’ compensation payments, as he does have capacity to work.

How long must we keep this job open and what are the ramifications in relation to workers’ compensation? Can we claim he has abandoned his employment?

You can’t assume that the employee has abandoned his position. Establishing that an employee has abandoned their employment is a high bar to meet and you would need to be able to show that the employee has not been in communication with you at all before you can declare this. Given this, you could write to the employee seeking more information with regards to their absence and inform them that if they don’t reply within a specified timeframe you will assume they have abandoned their employment.

To terminate the employment, you would need to show that the employee has failed to comply with a lawful and reasonable direction of the company. Accordingly, you could direct him to provide an explanation (and if appropriate, further evidence) of the reason for his absence from work and if he knows when he is likely to be back – also clarifying whether he believes he is on annual leave, personal leave, or unpaid leave. You could then take disciplinary action if he fails to comply. Alternatively, if the employee is covered by a modern award that contains an abandonment clause, this will set out the requirements for terminating the employment in these circumstances.

You may also wish to discuss this with your insurer as to what will occur with further payments.

Given your situation, in particular that he is currently on WorkCover, and that there has been a family emergency, terminating his employment could expose the company to significant liability (discrimination, unfair dismissal, general protections). We would recommend seeking specific legal advice prior to terminating his employment.

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