Employee's Failure to Report for Duties Due to Imprisonment; An Unfair Dismissal?

A jurisdictional objection to an unfair dismissal claim made to the Fair Work Commission has been upheld by Deputy President Anderson where a security guard officer’s employment came to an end after failing to attend shifts while imprisoned.

The Employee was detained by the police on 2 April 2023 after his shift where he was later remanded in custody until his release on 26 April 2023 after the charges had been dropped. While on remand, the employee had no access to the internet, a mobile or his contacts. Despite multiple requests to speak to his Employer, he was unable to do so while on remand.

During this period, the Employer was unaware that the Employee was on remand and had rostered the employee to work on April 3, 4 and 5 and again on April 8,9 and 10 of 2023. After the Employer made multiple attempts to contact the employee, the Employer sent the Employee a letter stating that the Employee had abandoned his employment due to a failure to report for duty. The Employer then sent a further letter to the Employee stating that the Employee had repudiated their contract of employment.

The Employee did not become aware that his employment had ended until after he was released from remand. To determine if the employee had been dismissed within the meaning of section 386 of the FW Act, Deputy President Anderson:

• Considered that the Employee intended to attend his rostered shifts and made reasonable efforts while in remand to notify the Employer.
• Came to the conclusion that the failure to attend a rostered shift offended the employee’s key employment obligations and amounted to a repudiation of contract notwithstanding it was the employee’s intention to work the rostered shift.
• Further noted that the contract of employment also ended via the contractual doctrine of frustration.
• Made the finding that there was no dismissal for purposes of the FW Act and therefore the employee was not entitled to make an unfair dismissal claim under the FW Act.

In the alternative, if the Deputy President’s findings were wrong, the Deputy President noted that the alleged dismissal was not unfair for purposes of the FW Act notwithstanding that it had harsh consequences on the employee.

The Deputy President also noted the unfortunate circumstances of both parties involved and referred these findings and observations to the Chief Executive of the Department of Correctional Services.

(Ali Qureshi v Spotless Services Australia Ltd [2023] FWC 2411)