A frustrated, annoyed or angered worker may walk off the job and an employer may deem that as the employee’s intention to end their employment. Or perhaps an employee continues to be absent after an authorized period of leave and then becomes completely unresponsive. Is it safe to assume that these workers have given up on their job and abandoned their employment?

Generally speaking, abandonment occurs when an employee clearly, through their actions or lack of action, indicates that they do not wish to continue at work. What is essential is a lack of communication from the employee detailing the reason for their absence.  However, abandonment is not lightly inferred and employers are reminded they must consider all objective facts and correctly follow procedure before quickly jumping to the conclusion that their employee has left their job permanently.  

In a recent case heard before the FWC[1], it was accepted that an angered employee had acted to end his employment on his own volition. During an altercation with his general manager, the employee responded by saying “kiss my arse”, while pointing to his posterior, then collected his belongings and left.

Similarly in a second case[2], a worker was dismissed after his supervisor provided instruction on how to correctly use a piece of machinery. The worker did not respond to the criticism well and responded by telling his supervisor to ‘shove his roster up his ass’.  However, in this instance the FWC accepted that his words did not constitute a valid reason for dismissal when considered in light of the context in which they were spoken. The actions of the worker were deemed out of character and arose from his frustration at being criticised. The Commission also considered the fact that the worker suffered from cerebral palsy and accepted that the company failed to make allowances for his disability.

Abandonment does not just occur when a worker walks off the job in anger but often arises when an employee is absent and won’t discuss their return to work. The situation becomes tricky when an employee is taking leave when dealing with a family crisis, personal matter or perhaps they have sustained serious (non work-related) injuries. They may not be ready to come back to work on the date specified or are not in a position emotionally to provide a return date. An employer must be patient and correctly follow procedure, even if they think it’s reasonable to assume abandonment has occurred.

For guidance on abandonment, an employer can turn to clauses in employment contracts or refer to a relevant modern award. Where either is silent on the issue, employers are advised to follow best practice procedure referred to in matters that come before FWC or the courts. Firstly, employers must attempt to make contact via via phone, email, work colleagues or even through Facebook. If there is no response, the next step would be to send a formal letter to the employee’s registered home address. The letter should detail the employer’s immediate request for notification of the employees return and consequences if the employee fails to contact their manager.

Lessons for employers:

Employers should take care to ensure they have taken reasonable steps to obtain an explanation from an employee before assuming abandonment, while also having policies and mechanisms in place to deal with an employee who has abandoned their employment.

For example:

·         Draft a company policy on leave, absenteeism and abandonment. The contents of the policy should be reiterated to employees to ensure they understand what is expected of them.

·         Record and monitor all absences from work. It is prudent to require your employees to provide medical certificates during periods of sick leave.

·         Exhaust all means of contact before concluding that abandonment has occurred. Be thorough and ask all staff if they know anything about the employee’s situation.

·         Consider whether your employee falls under one of the few awards that specifically deal with abandonment.

·         Employers are reminded to be patient and reasonable with time allowances. If a worker is away for 2 days it is unlikely abandonment will be a reasonable conclusion.

For guidance on abandonment, an employer can turn to clauses in employment contracts or refer to a relevant modern award. Where either is silent on the issue, employers are advised to follow best practice procedure referred to in matters that come before FWC or the courts. Firstly, employers must attempt to make contact via via phone, email, work colleagues or even through Facebook. If there is no response, the next step would be to send a formal letter to the employee’s registered home address. The letter should detail the employer’s immediate request for notification of the employees return and consequences if the employee fails to contact their manager.

Summary:

Often employers are quick to assume abandonment has occurred when a worker walks off a job in anger or fails to provide a return date after a period of leave. However, the FWC cautions employers that abandonment will not be inferred lightly and will be judged objectively on the facts. 

 

[1] Dwyer v Steelcon Pty Limited [2016] (13 May 2016)