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An employer has failed to prove a worker who had been absent for more than 12 months had abandoned his employment, with the Fair Work Commission finding he was too unwell, rather than unwilling, to return.

In September last year, Casa Ristorante Italiano emailed the cook, who had been on leave since August 2022 due to a work-related injury, and told him it had concluded he was unwilling to return to his employment and that his employment was "now considered terminated".

In the email, the employer said it had attempted to contact the employee about his recovery and return but he had failed to respond; it also noted his WorkCover case management specialist had said he wouldn't be capable of returning to work with the employer specifically...