By Gaby Grammeno Contributor

On Thursday 13 March 2025, a worker employed by a concreting company did not come to work. He hadn’t let his employer know he’d be away, and didn’t provide an explanation that day. His supervisor sent him two text messages asking where he was and if he was all right, but the worker didn’t respond for four days.  

The worker later claimed he’d been very unwell, sleeping intermittently and ‘in no shape to communicate with his employer about his absence’.  

He had already told another employee with an administrative role that he’d be away on 14 March due to a medical appointment, and again absent on 17 March due to a weekend away at a family reunion which would continue on into Monday. 

On Saturday 15 March the supervisor followed up with an email asking the worker again why he hadn’t turned up at work on the Thursday and if he was planning to return to work, and saying ‘we will plan for you not being around next week. Please let us know where you are at’. He didn’t receive a reply until the Monday, when the worker apologised for his absence on the Thursday and assured him he would be in the following day. 

The supervisor responded, repeating his message that ‘[we] have not planned for you to be in this week’ and his earlier complaint about the worker’s failure to explain his absence on the Thursday. 

'This is simply not acceptable,' he wrote. 'Call me tomorrow to resolve this issue and explain your side of events. I’m happy to be corrected if there is something we’ve misinterpreted.' 

The worker did not call the following day, but texted the supervisor on the Friday of that week complaining that he hadn’t been paid or rostered on for some days, and because he was fulltime and permanent, he could not be stood down without pay. He said he was willing to stay home if there was no work for him, but that he should be paid, as long as he was ready, willing and able to work. 

He said that to stand him down without pay was ‘tantamount to dismissal’ and a fundamental breach of his contract of employment. 

Similar exchanges occurred over the following week, including one from the supervisor on 24 March saying that as far as they knew, the worker had abandoned his position, ‘consistent with the ignoring of our calls and messages’ and asserting that the worker had mentioned to other employees that he was looking for another job. 

Tensions escalated through further messages and a heated phone call, to which the worker’s reaction was that the supervisor had been aggressive and tried to bully him. 

The worker concluded that the employer’s conduct amounted to a repudiation of his contract, and that he’d effectively been sacked. He applied to the Fair Work Commission for an unfair dismissal remedy.  

The employer, however, took the position that his employment had not been terminated, so he could not claim to have been unfairly dismissed. 

 

In the Commission 

The Fair Work Commission’s task was to determine whether the worker had actually been dismissed within the meaning of s 386(1)(a) of the Fair Work Act 2009. 

The employer submitted that ‘temporary, non-rostering does not of itself repudiate the contract’. The supervisor claimed there was an offer of work in the messages of 23 March, which asked whether the worker planned to return to work, and included the words ‘let us know your intentions’ and ‘we have shifts available tomorrow onward, please confirm’.  

The worker did not contend that he resigned or was forced to resign. His case was that by its conduct, and by not paying him for the day he was off sick, or the following two working days of authorised leave or at any time after that, the employer had repudiated his employment contract and terminated his employment. 

Commissioner Ben Redford noted that employment may be considered to have been abandoned ‘where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract’. 

After reviewing the evidence, Commissioner Redford formed the view that the worker had not abandoned his employment, and that the supervisor was ‘far too quick to assume that [the worker] no longer intended to perform his duties under his contract of employment and had renounced it’. This was ‘an unreasonable assumption’. 

The Commissioner agreed with the worker’s submission that the employer had breached the worker’s contract in a manner that repudiated it. He found that his employment was terminated at the initiative of his employer, and that the repudiation was accepted by the worker. 

He therefore dismissed the employer’s objection to the worker’s application, which will be heard at a later date. 

 

What it means for employers 

A delay in explaining an unauthorised absence and failure to respond promptly to communications does not necessarily amount to abandoning employment. In such circumstances, always check with HR or contact our Workplace Advice Line to find out how to properly handle the situation. 

 

Read the decision 

Mr Kane Poulter v Ja & Ja Concreting Pty Ltd As Trustee For The Teusner Family Trust - [2025] FWC 1441