Published 7 January 2017
The Fair Work Commission found an employee was unfairly dismissed after the employer mistakenly mistook his leaving work due to a panic attack as resignation. However the employee was only awarded two weeks’ pay in compensation as the employment relationship was strained and unlikely to continue for much longer.
Mr A suffered from depression as well as occasional panic attacks and had generalised anxiety, social anxiety and disorganised schizophrenia. He had not informed his employer of his mental health issues, however his employer, Mr H, reported that he was aware Mr A had anger management issues and difficulty with managing stress.
Six to eight weeks prior to 14 July 2016, Mr A displayed poor work attitude, poor performance, and consistent lateness.
On 14 July 2016, Mr A left the workplace because he experienced a panic attack. Mr A claimed he told Mr H that he could not stop his heart rate from going up, he was feeling stressed but had already taken his prescribed medication and he needed to speak to his general practitioner.
Mr H claimed on 14 July 2016, Mr A arrived at his office and said “Don’t try to stop me I am leaving it’s finished I am going”. Mr H claimed he did not follow Mr A because he remembered Mr A saying “I hurt people I love and I can’t help doing it”.
Mr H discovered that Mr A had taken several personal items with him. The following day, Mr H spoke to someone from Business SA and the Fair Work Ombudsman who confirmed Mr H could regard Mr A as having resigned.
Mr H attempted to speak to Mr A the following week, however his messages were not returned.
On 18 July 2016, Mr H emailed Mr A, referring to medical certificates provided to him, and confirmed Mr A had resigned on 14 July 2016 when he left. A series of correspondence ensued between the two parties where Mr A denied resigning. In a later email dated 23 July 2016, Mr A advised that he had lodged a general protections claim. This was later substituted for an unfair dismissal claim.
The Fair Work Commission (the Commission) was not satisfied Mr A had resigned and found the Respondent had terminated his employment based on the advice provided by Business SA and the Fair Work Ombudsman, the “soured relationship between Mr A and Mr H” and the inability of Mr H to contact Mr A.
Although Mr H said he was not aware Mr A had any mental health problems, the Commission believed the employer should have had “at least some awareness” that Mr A was distressed and his behaviour was abnormal.
The Commission found that although Mr H had concerns regarding Mr A’s performance, this did not constitute a valid reason for the termination of his employment, nor did Mr A’s actions on 14 July 2016 warrant termination.
Mr A was notified of the reason for his termination and was given an opportunity to respond as the Respondent attempted to contact Mr A after 14 July 2016. The Commission found, “had Mr A been prepared to discuss the matter … the termination of his employment may have been avoided.”
The Commission noted that the Respondent was a small business without a sophisticated human resource management procedure and without human resource management expertise. These factors mitigated against a finding of unfairness.
Consequently, the Commission found the dismissal to be harsh, unjust and unfair, however reinstatement was not appropriate due to the breakdown in the relationship between Mr A and Mr H. Further, due to performance issues prior to Mr A’s abrupt departure on 14 July 2016, it was unlikely the employment relationship would have survived for much longer.
The Commission concluded a compensation amount of two weeks’ pay, less tax but including superannuation payments, to be appropriate.
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