Abandonment of employment arises where an employee absents themselves from the workplace without reasonable excuse, and/or has failed to communicate with their employer the reason for the absence. In these situations, it is essential that the employee has demonstrated an intention to no longer be bound by the terms of the contract.
Often we are asked: at what point is it safe to assume that abandonment has occurred? Or, during a period of unexplained and continued absence, when is it reasonable to conclude that an employee is gone for good? While few modern awards specifically provide for circumstances where an employee will be deemed to have abandoned their employment, the answer is far from straightforward. As evident in the following case, employers will fall into legal trouble if they jump the gun and declare abandonment too soon.
In a recent case heard by the FWC, an employee was deemed to have abandoned his employment after he failed to show up to work for a fortnight. Despite previous warnings and the fact he was on a PIP for similar incidents, the employee provided no information on his wareabouts or the reason for his absence. This led to his employer notifying the employee that he had abandoned his job and it would pay him for five weeks in lieu of notice.
In the initial case, the commission adopted a strict interpretation of the relevant award clause. They interpreted the abandonment clause as meaning that without the consent of the employer and without notification to the employer, for a continuous period of more than three working days, the employee is considered to have abandoned their employment. The employee also argued that the decision to terminate was also in contravention of the general protections provisions set out in the FWA and specifically s.352, which prohibits an employer dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009.
However, on appeal it was found that a clause did not operate as an automatic right to terminate the worker. Rather, the full bench stated that the clause does not operate until “the employer takes the positive step of concluding that it is not satisfied that the employee was absent for reasonable cause “. At common law, it is the action of the employer in accepting the repudiation that brings about a termination of the employment.
If you’re an employer concerned that your employee has abandoned their employment, we recommend taking the following steps before making any final decisions. First, attempt to contact the employee or their next of kin. Possible avenues include via phone, email, and work colleagues or even through Facebook. Remember to ask for an explanation for their ongoing absence. If no contact can be made, send a formal letter to their registered address notifying the employee of the disciplinary actions that follow if they continue to remain unresponsive. Remember, an employer cannot consider abandonment to have occurred until reasonable steps are taken to find out whether (or not) the employee is coming back to work.
Lessons for employers
- Ensure policies that deal with issues such as leave approval, attendance and absenteeism are comprehensive and reiterated to your employees so they are aware of your expectations.
- Note specific awards contain provisions that deal with abandonment of employment. Ensure you are compliant with these requirements before taking action.
- Remember an employee on a period of leave (paid or unpaid) is not said to have abandoned their employment.
- Make every possible effort to find out the reason for the absence before making any quick decisions. Ensure detailed notes are taken on the actions taken to try and get in contact with the employee.
- Ensure a reasonable time frame has elapsed before declaring the employee has abandoned their job. If a worker is away for 2 days it is unlikely abandonment will be a reasonable conclusion.
Mr Boguslaw Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia  FWCFB 38 (13 January 2016).