Employees off due to illness or injury have a duty to communicate

The recent case of Laviano v Fair Work Ombudsman1 reinforces that employees absent from work for extended periods due to illness or injury have a duty to communicate with their employers.

In this case, the employee had been absent from work for a large part of 2014 due to a psychological condition.

The employee was advised by his psychologist not to open any correspondence from his employer for a period of around two months. However, the fact that the employee had been given this medical advice was not communicated to the employer either by the employee or anyone on his behalf.

As a result of not opening correspondence from his employer, the employee failed to attend a medical examination that his employer directed him to attend. His employment was then terminated on the ground of non-performance of a duty as a consequence of the non-attendance at the medical appointment.

The employee lodged a general protections claim in relation to the termination, claiming he was discriminated against because of his disability.

The claim was dismissed. The Judge held that it was unreasonable for the employee to ‘shut down’ all communication between himself and his employer. The employee had a duty to communicate with the employer at the relevant time – including to communicate that he would not be opening correspondence for a set period. The Judge also refused to accept that the illness prevented the employee from attending a medical assessment.

While every case turns on its own facts, this case is a timely reminder, that employees on long term absences continue to have obligations to their employers and cannot unreasonably use their illness or injury as a shield against complying with those obligations.

1[2017] FCA 197

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