Employee missing from job for 2 years wins fight to keep unfair dismissal claim alive

An ACT government employee who claimed the COVID-19 vaccine prevented her from returning to work for two years won a case to keep her unfair dismissal application alive in the Fair Work Commission.

The ACT, represented by the directorate of the chief minister of treasury and economic development, failed to have a former employee’s unfair dismissal application tossed out on the grounds her refusal to return to work brought her employment to an end.

The employee, Gaye Walker, began work in May 2021 but did not return after receiving her second dose of the COVID-19 vaccine in September.

While medical practitioners disagreed about her capacity to work, Walker claimed she suffered “various ongoing and debilitating symptoms” caused by the second dose that meant she was not able “to work at all”.

In the 29 months of employment, Walker was away for over two years.

In June 2023, after an independent medical examiner found Walker was fit to work from home for two hours per day for three days a week, the directorate made a formal direction for Walker to return the next month.

The day before she was due to return, Walker provided a medical certificate that claimed she was unfit for duty until September of that year due to a “medical condition”. This was contested by the directorate.

The following month, under the Public Sector Management Act 1994 (PSM), the directorate commenced a “forfeiture of office” process, which sets out that an employee can be considered retired if they are away from work without permission for a continuous period of four weeks or more.

In the initial letter, the directorate told Walker she would be considered retired unless she returned to work or provided an explanation of her absence in writing and sought permission for a further absence.

While Walker’s lawyers provided the directorate with further medical material, the directorate said her explanation was rejected, her application for further absence was declined, and directed her to return to work. She was taken to have retired in October 2023.

The directorate told the Fair Work Commission the critical action that ended Walker’s employment was her refusal to return to work.

However, deputy president Michael Easton said the PSM Act could not apply because the directorate “took more steps” after issuing the notice and Walker had sought to preserve her employment by providing further medical certificates regarding her capacity to work.

While Walker “did not cooperate well” and did not “constructively engage” with the dissonance in the medical opinions of her ability to perform work, Easton said it was sufficient to recognise that Walker responded to the notice and this did not prevent the directorate from taking further steps.

“The directorate’s submission that the ending of the employment occurred as a result of the decisions made by Walker is literally correct; however, one cannot examine Walker’s conduct without also examining the directorate’s conduct,” Easton said.

“It is equally correct to say that the ending of the employment occurred as a result of the decisions that were made by [the directorate’s head of service] requiring Walker to engage with the process.”

In the alternative, the directorate argued Walker “repudiated her contract” because her actions were “fundamentally inconsistent with a public servant seeking to return to work”.

However, Easton did not accept Walker abandoned her employment, nor had she repudiated it.

“Walker’s conduct may or may not have been misconduct or unsatisfactory conduct, but I cannot find that her conduct was so uncooperative that it repudiated the employment,” Easton said.