Can you abandon your employment to save your marriage and make sure your kids are looked after and not be dismissed? The Fair Work Commission has ruled on an unfair dismissal case involving a worker who was dismissed for abandoning his employment to be with his family in another state. Employee dismissed for trying to save marriage could happen to any of us. Further what lessons can be learnt from this case.
This is perhaps one of the more justified reasons to abandon your employment. But even if you have a good reason, job abandonment can often lead to a fair and reasonable dismissal under the law. Read on to discover the Fair Work Commission’s decision on this unfair dismissal case – Campbell Green v Citic Pacific Mining Management Pty Ltd [2022] FWC 2455.
Mining technician abandons employment to save family
Campbell Green was a family man with a wife and two young kids. He was the sole income earner of his family. For more than six years, he worked as a field services technician in the Pilbara region of north-west Western Australia for Citic, a mining company. He was considered a valued employee due to his expertise in maintaining heavy mining equipment. Mr Green was a fly-in-fly-out (FIFO) worker who would spend two weeks on-site at the mine and then have a week off to return to his home in Bendigo, Victoria.
But when the COVID-19 pandemic hit Australia in March 2020, it caused complications for Mr Green. Namely, because interstate border restrictions disrupted FIFO arrangements. As the sole income earner for his family, Mr Green faced a tough decision. He chose to remain in the Pilbara, working continuously at the mine and earning an income to support his family. However, the separation took a toll on Mr Green and his family, as he was only allowed occasional visits back home when border restrictions allowed.
Employee injures his hand, gets stuck in Victoria
Everything changed on August 20, 2021, when Green sustained a workplace injury to his left hand. He received treatment in Perth, but was forced to return to Victoria to undergo rehabilitation. By 1 December 2021, Mr Green had fully recovered and was therefore no longer on workers’ compensation. He was, however, unable to travel back to the mine due to the closed Western Australian border.
CITIC placed Mr Green on annual leave until he could travel back to the Pilbara and resume work. During this time, he enjoyed the company of his family and actively took care of his young children while his wife secured a job in Bendigo.Fortunately, in mid-March 2022, the Western Australian border reopened, and Mr Green was rostered by CITIC to return to work. Before doing so, he needed a medical clearance, which he obtained on March 15 in Perth. He flew to the Pilbara the next day and commenced work at the mine site.
A conversation with the wife changes everything
In the evening of March 17, Mr Green had a heart-wrenching conversation with his wife. She expressed her inability to cope with his continued absence, and that it was putting their marriage and family at risk. Distraught, Green felt torn between his work obligations and his family’s needs. The next day, Mr Green asked his supervisor for approval to return to Victoria for family reasons. The matter was escalated to the mine manager. Mr Green told the mine manager that he was struggling to care for his family by being absent from them. And that his children were not coping with him being away.
The mine manager however did not allow Mr Green to return to Victoria because Citic was “trying to get back on top of the workload” after COVID-19. The mine manager acknowledged Mr Green’s entitlement to take annual leave. But he made it clear that taking unpaid leave was not an option. The mine manager stressed the need for Mr Green to fulfill his FIFO roster obligations, and that he was unable to “come and go as you please.”
If I could stay I would
Mr Green was torn between his obligations to work and family. He pleaded to the mine manager, saying, “Look, I get all of that but my wife has said that I have to be home by Monday. If I could stay I would, but I can’t.” To this, the mine manager advised Mr Green to complete a leave form and obtain his supervisor’s approval. However, Mr Green left the office without completing a leave form. Later, CITIC’s HR team emailed Mr Green instructions on how to apply for leave. But he failed to respond to the multiple messages they had sent him.
Employee abandons his employment
Frustrated and desperate, on 18 March 2022 Mr Green made the difficult decision to leave the mine site without proper authorisation. This was all in hope of resolving the situation with his family back in Bendigo. And Mr Green’s unauthorised departure did not go unnoticed.
Upon discovering his absence, CITIC initiated an investigation into the matter. They considered it a serious breach of company policies and procedures, as well as a violation of its enterprise agreement. Green’s actions were seen as an abandonment of his employment responsibilities. The company had followed the required process to attempt to make contact with Mr Green. This included numerous emails, text messages, voice messages and phone calls that went unanswered.
A few days later, on March 22, 2022, Mr Green received a letter from Citic informing him of the commencement of disciplinary proceedings. The company accused him of unauthorised absence from work and failing to follow proper procedures for requesting leave. Mr Green, now realising the gravity of his actions, understood that his job was in danger due to abandonment of employment.
The disciplinary process moved forward swiftly. Mr Green attended a disciplinary meeting on April 6, 2022, accompanied by a union representative. He acknowledged his unauthorised departure but explained the emotional turmoil he was experiencing and the pressure from his family. Mr Green expressed remorse for his actions and pleaded for leniency, hoping to save his job.
Employee is dismissed for abandonment of employment
Despite Mr Green’s heartfelt explanation, CITIC determined that his abandonment of employment constituted serious misconduct and a breach of trust. On April 14, 2022, Green received a dismissal letter from CITIC. The company cited the unauthorised absence as the primary reason for his dismissal.
The news devastated Mr Green and his family. With his job gone, he faced an uncertain future and the challenges of finding new employment in a competitive job market. Financial concerns loomed over the family as they adjusted to the loss of Mr Green’s income. He subsequently made an unfair dismissal claim with the Fair Work Commission.
Fair Work Commission rules on the abandonment of employment case
At his unfair dismissal hearing, Mr Green argued to the Fair Work Commission that he expected his supervisor or manager to apply for leave on his behalf. But noting Mr Green’s lack of concern for his employment obligations, this argument was dismissed by the Fair Work Commission.
The FWC found that Citic’s request for Mr Green to not be absent from work unless on authorised leave was lawful and reasonable. It accepted that by not having leave approved and not providing Citic with a return to work date, Mr Green had not complied with this lawful and reasonable directive.
The Fair Work Commission stated that Mr Green was unresponsive to multiple attempts of communication. This included emails, text messages, voice messages and missed calls. Despite being aware of the need to address his absence from work, it was found that “he only responded when he wanted to and on his terms.”
Challenging situation
The Fair Work Commission acknowledged that Mr Green was facing a challenging situation, torn between his desire for income and his difficult family circumstances. However, it stated that he was not forced to choose between work and family and was provided with opportunities to find a solution.
Due to Mr Green’s indifference towards his employment responsibilities and failure to seek authorised leave or communicate his intentions, he was at risk of dismissal. And despite a clear warning, he still failed to make contact with Citic, resulting in his dismissal. The Fair Work Commission therefore ruled that Mr Green’s dismissal was not unfair and his case was dismissed.
Employee dismissed for trying to save marriage: Conclusion
The tale of Mr Green’s abandonment of employment and dismissal serves as a reminder of the delicate balance between work and family. But also, it reminds us that even if you are facing difficulty outside of work, it is critical to follow the proper procedures when taking leave. And if you do take unauthorised leave, to make sure you still answer your employer’s attempts at making contact with you.
In Mr Green’s case, he failed to do these things, and as a result, his unfair dismissal claim was thrown out by the Fair Work Commission. However, we have seen many employees who abandoned their employment win unfair dismissal cases. Often, because their employer did not follow proper procedure.
Absent from work the consquences
Australia’s workplace laws state that abandonment of employment is when an employee is absent from work for an unreasonable amount of time. And that during this time, they have failed to reach out to their employer to provide a reasonable explanation for their absence. Our workplace laws also mandate that employers must make multiple attempts to get in touch with the absent employee.
If the absent employee fails to answer any of these attempts, they can then be fairly dismissed for abandonment of employment. As we saw in the case of Mr Green, his employer made several attempts to make contract with him, all of which were unanswered. Therefore, his dismissal was ruled as fair by the Fair Work Commission.
Have you been unfairly dismissed? Not receiving shifts call us today.
If you have been dismissed for abandoning your employment. Or if you feel you have been unfairly dismissed for another reason, we at A Whole New Approach can help. We are nationally recognised force in providing expert representation for unfair dismissal cases. With over 30 years of experience and a team of dedicated professionals, we have assisted over 16,000 employees from all states across the country.
When you consult with us, you can expect a completely free initial consultation where we will listen to your case. We provide you with upfront and compassionate guidance. But remember – timing is crucial with unfair dismissal cases. You have just 21 days in which to lodge your claim with the Fair Work Commission. Our team can guide you through the process, ensuring you to maximise your chances of receiving the compensation you deserve.
While we are not lawyers or affiliated with the Fair Work Commission or any government agency. We are experts at what we do. We have vast knowledge of the legal complexities surrounding unfair dismissals. And through our extensive expertise, we have earned a reputation that employers know and fear. We pride ourselves on being available to all clients seven days a week. We offer fast services, settlements and a widespread operation covering all of Australia.
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