Hospital, Jail, sick, why employees cannot go to work

Abandonment of employment comes about for many reasons. As we’ve seen in unfair dismissal cases heard by the Fair Work Commission, sometimes employees find themselves in hospital and unable to get in contact with their work. Other times, they may just be sick of their job and decide to never go back in. (particularly with casual employees). And on rare occasions, they may even be stuck in jail, as we’ve previously written about. In this article, we look at unusual cases of abandonment of employment from Australia and around the world. But first, what exactly constitutes abandonment of employment?

The definition of abandonment of employment

Australia’s robust workplace protection laws help ensure employees aren’t unfairly dismissed for abandonment of employment. They outline that abandonment of employment is when an employee is absent from work for an unreasonable amount of time. And when they haven’t contacted their employer to provide a reasonable reason for their absence.

In Australia, an employer is required to make numerous attempts to get in touch with the absent employee. Only if they fail to reply to these attempts can the employee be fairly dismissed for abandonment of employment. You can read more about the ins and outs of abandonment employment in our article here.

Now that you know the general definition, let’s look at five unusual abandonment of employment stories from around the world.

1. Chilean worker abandons employment after being paid 330 times his salary

This story of abandonment of employment that hit the headlines last year is one that ended well for the employee, but no so much the employer. It involves a Chilean worker who abandoned his employment at a meat products company after he was paid 330 times his normal salary.

On May 30 last year the worker was happily surprised to find that over 165 million Chilean pesos (around AU$290,000) had been deposited in his bank account. His regular paycheck, however, was only around 500,000 pesos (AU$876). Initially, the worker had done the right thing by informing his manager that he’d received an unexpected pay bump. He was then asked by a HR representative to kindly return the money, and the worker promised to do so the next day.

However, as you can guess, the worker never made the transaction. He effectively abandoned his employment by going completely AWOL, failing to respond to numerous calls and text messages from the company. Finally, after some time, the worker indirectly got in contact with the company. However, this simply consisted of his lawyer sending them his resignation letter. He then disappeared yet again. So far, law enforcement has not been able to find him.

2. Hospitalized pregnant receptionist suffering PTSD dismissed for abandonment of employment

As I mentioned earlier, Australia’s workplace protections are among the most robust in the world. When dismissing and employee for abandonment of employment, an employer must adhere to strict obligations and only dismiss them for a justified reason. But in the United States, employees have far less workplace protections. And this was clearly evident in this case of abandonment of employment involving a receptionist who shared her story on Reddit last year.

The receptionist, who was pregnant, had been diagnosed with Major Depressive Disorder and Post-Traumatic Stress Disorder. She said she also suffered from terrible morning sickness that would last all day long. This forced her to take around a months’ worth of leave, and when she finally returned to work, it wasn’t smooth sailing. “First day back to work, I have a breakdown,” she writes. “A full-blown episode. I couldn’t function, I couldn’t work.”

The reason for the breakdown is that the receptionist wasn’t able to take her regular psych medication due to her pregnancy. This led her to eventually enter into a partial hospitalization program and apply for disability support. However, despite the receptionists suffering her employer warned that if she didn’t return to work by a certain date, she would be dismissed for abandonment of employment. And that’s exactly what happened. Unfortunately, the reality is that the dismissal was completely legal in her state.

Bit malicious and failed to keep in contact

“As far as I know they were within their right to sack me, but it just felt a bit malicious,” she writes. It’s worth noting that in Australia, an employee can take up to three consecutive months of sick leave within a 12-month period if they are ill or injured. Once they cross that threshold, the employee can potentially be dismissed for calling in sick. If they fail to keep in contact with their employer, however, it could result in a dismissal for abandonment of employment.

3. Tradies abandon employment after winning Lotto

Believe it or not, in recent years there’s been a few cases of tradies winning jackpots and abandoning their employment as a result. In 2018, a Melbourne tradie in his early twenties lucked out when he won a cool $10 million in the Oz Lotto draw. He took home the entire jackpot as he was the only winner, discovering his big win while at work. “Holy s–t! Holy s–t!” he screamed into the phone to the Oz Lotto official, according to a Channel Nine article. And what were his plans for the money?

The tradie said that he was keen to start a real estate investment portfolio. And that he was planning to abandon his employment to take an indefinite smoko. “I’ll be buying some houses that’s for sure,” he told Channel Nine. “But for today I’m walking out of here. I won’t be going back to work after smoko.” In 2019, a Sydney tradie also lucked out by winning the Lotto and similarly decided to abandon his employment. The tradie, based in the south-western suburb of Leumeah, was at work when he heard that the winning ticket had been purchased in his area.

Immediately resigned

He checked his numbers online and was gobsmacked to see that he’d won the whopping $50 million Oz Lotto jackpot. But the tradie couldn’t believe his eyes. So he called his daughter to check the numbers too. And as soon as she confirmed the huge win, the tradie decided to immediately abandon his employment. “As soon as she said that I just walked out from work. I didn’t say anything. I was just thinking ‘oh my god’,” the tradie told Oz Lotto, “I am definitely not going to work.”

4. Worker dismissed for abandonment of employment after fatal crash

In this unfair dismissal case – Wally Gawron vs. SCI Operation [1995] – a 26-year employee of a container manufacturer was dismissed for abandonment of employment after suffering debilitating injuries in a car crash. In January 1992, production supervisor Wally Gawron was on holiday when he was involved in a car crash that resulted in the death of another passenger in the car. While Mr Gawron suffered horrendous physical and psychological injuries that required considerable medical attention.

He suffered a major behavioural change and sleeping difficulties, for which he was prescribed medication. Mr Gawron also underwent major surgery on his back and elbow, in addition to considerable dental work. Then, after around two years absence from his work, in May 1994 Mr Gawron was dismissed for abandonment of employment. “Despite our several offers for you to return to work, and medical opinions that you are able to return to work, you have not returned as is required,” read the letter Mr Gawron received from SCI Operation.

Mr Gawron subsequently made an unfair dismissal claim through the Australian Industrial Relations Commission (the predecessor of the Fair Work Commission). At the unfair dismissal hearing, SCT Operation claimed that it had verbally told Mr Gawron that “there would always be a job for you when you’re well.” His failure to accept the offer led the company to believe that he had abandoned his employment.

No formal offer

But Mr Gawron maintained that he never received a formal offer to return to work. And that refusing to take the offer would lead to dismissal by way of abandonment of employment. The Commission agreed, ruling that Mr Gawron hadn’t abandoned his employment. It ordered SCI Operation to reinstate him and pay him $15,516.00.

5. Plumber dismissed for abandonment of employment after going to jail for gang fight

This UK unfair dismissal case presented one of the more extreme reasons why an employee was dismissed for abandonment of employment. The case – Shepherd (F.C.) & Company Ltd v Jerrom [1986]. Involved an apprentice plumber, Mark Jerrom, who was sent to jail for getting involved in a gang fight.

Mr Jerrom, who was employed by Shepherd & Company as part of a four-year apprenticeship, was in 1981 involved in a “punch up,” according to the court report. But this wasn’t just any punch up. The brawl involved two rival gangs and resulted in the death of one youth. Mr Jerrom was later indicted for manslaughter as well as conspiracy to assault and affray. He was acquitted of manslaughter, but found guilty of the two remaining charges. He was then sentenced to a juvenile prison, thereby abandoning his employment.

After serving just under six months in prison, Mr Jerrom contacted his employer to see if he could resume his apprenticeship. However, they refused to take him back. It had already issued a dismissal letter to him via his probation officer. Mr Jerrom subsequently made an unfair dismissal claim with a UK tribunal. It didn’t find that Mr Jerrom had abandoned his employment, but rather, that he had frustrated his employment contract. This was because his prison sentence forced him to be absent for a large period of his apprenticeship. Mr Jerrom’s dismissal was therefore deemed fair and reasonable.

Takeaways for abandonment of employment

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