The Fair Work Commission has ruled that a Melbourne admin worker absent from work for two months following a suicide attempt had abandoned her employment. The worker, who had not provided sufficient explanation for her absence, had lodged a general protections claim accusing her employer of disability-based discrimination.
This case, which we’ll explore in this article, provides an important reminder to always keep your employer informed when you’re absent from work. The cold hard truth is that even if you’re involved in extremely distressful circumstances, you still generally need to provide an explanation for your absence. Or, you might be fairly dismissed.
Read on to learn the events of this case and the four-part test the Fair Work Commission used to decide if the worker abandoned their employment. And later, we’ll look at another recent case where a worker was found not to have abandoned their employment.
The events of this general protections application were detailed in the case Debora Tavares Alves v The Trustee For T.C. Future Investment Unit Trust [2025]. Melbourne-based Debora Alves had been an office manager at CNA Accountants for over 12 years. Her duties included corresponding with clients and performing admin tasks. The events leading to her dismissal began on 8 November 2024. This was when Ms. Alves called in to work saying she had a bad migraine.
The next day, she suffered what the Fair Work Commission described as a medical emergency “of the most extreme kind.” Ms. Alves attempted to take her own life, which led to her hospitalisation. Her self-inflicted injuries required surgery and she was later placed in a mental health facility following police involvement.
Ms. Alves told the Fair Work Commission that since 2023 she had suffered “significant” mental health issues. This was due to “personal hardships,” including the breakdown of her marriage and the “miscarriage of my twins.” The Commission said her suicide attempt left her with “severe” trauma.
On 11 November 2024, Ms. Alves’ daughter texted CNA Accountants saying that her mother was in hospital and could not attend work. She provided a medical certificate from Royal Melbourne Hospital stating that Ms. Alves would be absent from work for a week, until 17 November 2024.
On the day she was expected to return, 18 November 20204, Ms. Alves didn’t turn up to work. A CNA Accountants director texted her daughter to see if “she is ok?” He asked if she would be coming in. About an hour later, Ms. Alves’ daughter texted back saying that she was still in hospital and that she hasn’t been able to see her.
She said that she didn’t know of her mother’s condition and when she will recover. Ms. Alves’ daughter apologised and said she would be in touch as soon as she had an update. The director texted back, “Why can’t you see her and what has happened? This doesn’t make sense I’m confused.”
Later that night, Ms. Alves’ daughter emailed the director apologising for the lack of communication. She said her mother was still in hospital with stress related and “mental health” issues and would need to “temporarily” step back from work responsibilities. She said it was unclear when she could return to work. The daughter said that her mother “deeply values her time” at CNA Accountants and that she “wishes to work with you” to explore the best path forward during this period.
The next day, the director emailed the daughter saying that they were “deeply” concerned about her mother. But he stated that the report on her current state was “a bit vague” and that the company needed more details. The director said the company needed to make plans to hire a temporary replacement if Ms. Alves would be away long-term.
The daughter replied saying that she couldn’t provide any further details at the moment and advised that CNA Accountants hire a temporary replacement. Following this, CNA Accountants made multiple attempts to contact Ms. Alves or her daughter for an update. On 25 November 2024, the company’s bookkeeper emailed Ms. Alves requesting information on her absence and a current medical certificate.
On 3 December 2024, the director texted the daughter to request an update. He also contacted Ms. Alves’s sister, who reportedly said Ms. Alves was “sick and had just woken up.”
On 16 December 2024, the director sent Ms. Alves a formal letter, warning that due to a lack of contact, the company would “presume” that she may have abandoned her employment. The letter requested a response within 14 days. With no response received, on 15 January 2025, a dismissal letter was sent to Ms. Alves.
The letter stated that CNA Accountants now considered she had abandoned her employment and that she was summarily dismissed. The letter granted a five-week notice period. On 19 February 2025, Ms. Alves’s employment was formally terminated, with her payslip and an employment separation certificate emailed to her. This cited abandonment of employment as the reason for her dismissal.
Following her dismissal, in early April 2025 Ms. Alves filed a general protections claim with the Fair Work Commission. However, she filed it three weeks after the 21-day statutory time limit for such claims. Ms. Alves argued that the reason for her dismissal included her physical and mental disability and her temporary absence from work.
She told the Commission that she was a “mess with mental health issues depression anxiety ptsd etc…” She claimed that CNA Accountants “took advantage” of her as her “mental health & suicide is a private matter.” She sought payment of a redundancy and her 2024 bonus.
CNA Accountants raised two objections to Ms. Alves’ general protections claim. The first was that her claim was submitted outside the 21-day statutory timeframe. The second was a jurisdictional objection, arguing that Ms. Alves was not dismissed at the initiative of the employer, as defined by the Fair Work Act 2009.
CNA Accountants contended that Ms. Alves’s “extended and unexplained absence” from work meant she had effectively renounced her employment relationship. The company submitted that Ms. Alves’s conduct would have conveyed to a reasonable person in CNA Accountants’ position that Ms. Alves had renounced her employment contract.
The Fair Work Commission first addressed the late general protections application. It acknowledged the “horrific” nature of the medical episode, including a suicide attempt and self-inflicted injuries. The Commission found that the reasons for the delay constituted “exceptional circumstances,” noting that Ms. Alves suffered from post traumatic stress disorder, generalised anxiety disorder and major depression.
It said that she was suffering from something that was “much more than” a mere depressive illness. Weighing this against Ms. Alves’s failure to dispute the dismissal in her correspondence with the CNA Accountants, the Commission granted an extension of time, making the general protections claim application valid.
The Fair Work Commission proceeded to hear the jurisdictional objection regarding dismissal. It applied a four-part test for abandonment of employment. This test examined whether an employee’s conduct would convey to a reasonable employer a renunciation of the employment contract.
The Commission found in favour of CNA Accountants on all four components of the test:
The Fair Work Commission concluded that CNA Accountants was not told of the “extent of the trauma” Ms. Alves experienced. It was therefore entitled to conclude that she had repudiated her employment relationship. The Commission explicitly stated that the situation of the employee is not the basis of the test for abandonment of employment. Rather, the test is based on the situation of the employer and what they knew based on what the employee has communicated.
Ultimately, the Commission concluded that there was no termination at the initiative of the employer. Therefore, Ms. Alves’s general protections application was dismissed.
Another recent Fair Work Commission case that dealt with abandonment of employment is Carmel Teresa Davey v Goulburn South Caravan Park Pty Ltd T/A Southern Cross Parks [2025]. Carmel and Steven Davey began working as park managers for Southern Cross Parks in July 2020. They were employed on a single contract, which covered both of them, and initially worked at the Goulburn South Caravan Park in Goulburn, New South Wales.
After the lease on that park expired in July 2024, the couple took nine weeks of annual leave while their employer found them another role. On 30 September 2024, the Daveys started a new role as park managers at the Queens Beach Tourist Village in Bowen, Queensland. The transition was described as “chaotic” by Mrs. Davey due to issues with setting up accounts and office equipment.
Mrs. Davey’s distress grew over the next two days as she found it difficult to cope with the complex new system and lack of structure. On 1 October 2024, she became very upset and “cried for hours.” By the next day, she had what her husband described as a “breakdown.” Mr. Davey notified their manager of his wife’s condition. The manager asked Mr. Davey what they should do and suggested giving Mrs. Davey the day off.
However, Mr. Davey didn’t think that would be a good idea. So, despite her anxiety, Mrs. Davey continued to work. On 3 October 2024, Mrs. Davey felt “unwell mentally” and her physical symptoms began to manifest, with her face becoming “very red.” That night, she suffered another “breakdown” and did not sleep. The next morning, Mr. Davey told his manager that his wife had another breakdown overnight. The manager responded by asking, “What are you going to do?” and then said that she “will have to find new managers.”
A short time later, the manager approached the couple and said to Mrs. Davey that she was no longer a manager. She said that she could continue working as a cleaner and that Mr. Davey and a new colleague could run the office. Southern Cross Parks’s general manager subsequently called Mr. Davey. The general manager told the Fair Work Commission that he told Mr. Davey he would need to hire relief managers because Mr. Davey was “taking Mrs. Davey away.”
However, according to Mr. Davey, the general manager asked if he could stay on for a few weeks until new managers were found. The general manager then instructed him to “send Carmel home ASAP.” Later that afternoon, Mr. Davey claimed the general manager called him to say he had secured some new managers and that “I need you and Carmel to finish up…and leave the park as soon as possible.” In response to this instruction, Mr. Davey booked flights for the following day.
The Davey’s subsequently lodged a Fair Work Commission application to deal with contraventions involving dismissal. Mr. Davey denied ever telling anyone they were resigning. He said he and Mrs. Davey only left the site because they were instructed to do so and that she had not abandoned her employment.
In an email dated to the general manager Mr. Davey stated that he “never mentioned the word resigning.” He said that if he was going to resign, he “would put it in writing.” The couple claimed that their attempts to call and email Southern Cross Parks following their dismissal was evidence that they believed their employment relationship was ongoing
Southern Cross Parks lodged a jurisdictional objection to the Davey’s Fair Work Commission application. The general manager said that the couple’s manager told him on the morning of 4 October 2024 that “they’re out.” The manager said that Mr. Davey had told her that “he needed to take her away from here.” The general manager further stated to the Fair Work Commission that Mr. and Mrs. Davey’s actions forced him to hire new managers, and that they had abandoned the job and the park. Southern Cross Parks then deducted three weeks’ notice from Mr. and Mrs. Davey’s pay and annual leave entitlements.
The Fair Work Commission found the general manager’s account of events to be inconsistent with the evidence. It noted that the Davey’s manager denied telling the general manager that the couple had left. The Commission also found it unlikely that Mr. Davey told the general manager he was taking Mrs. Davey away. It said that the “more likely scenario” was that the general manager became concerned that Mrs. Davey was not coping and would not be able to fulfil her duties.
The Commission concluded that the general manager telling Mr. Davey that he and his wife needed to leave as soon as possible was the “principal contributing factor” leading to Mrs. Davey’s dismissal. It found that Mrs. Davey did not abandon her employment and was in fact dismissed by Southern Cross Parks on 4 October 2024.
As a result, the jurisdictional objection raised by Southern Cross Parks was dismissed. The matter was ordered to proceed to a conference.
Read more: What is Abandonment of Employment?
Australian Workplace Discrimination Representatives has decades of experience helping employees challenge these claims, along with cases involving bullying, harassment, discrimination and redundancies. We’ve supported more than 16,000 Australians in standing up for their rights, achieving fast resolutions and fair compensation. With strict time limits on lodging Fair Work Commission claims, acting quickly is vital. Call 1800 333 666 today and get the support you deserve.
