The Fair Work Commission has handed down a decision in relation to what constitutes abandonment of employment in Debora Tavares Alves v The Trustee for T.C. Future Investment Unit Trust [2025] FWC 2025.

Background

Ms Alves was an office manager at Future Investment, and following a medical issue, she was absent from work for an extended period of time. In November 2024, Alves experienced a mental health breakdown, which included a suicide attempt. Following the mental health breakdown, Alves spent time in hospital on multiple occasions and underwent 3 surgeries due to physical complications.

Alves’s daughter contacted the employer to advise that Alves was in hospital and unable to attend work. A medical certificate was provided to the employer, which covered a 1-week period. Following the conclusion of that week, Alves did not attend work. The employer contacted Alves’s daughter and was informed that Alves was still in the hospital. Later that night, Alves’s daughter responded that due to ongoing “stress related and mental health issues”, Alves had been advised to “temporarily step back from work responsibilities”. There was also uncertainty as to when Alves would recover.

The following day the employer told Alves’s daughter that they needed more details as to the medical issues and the associated period of recovery, as they needed to determine if a temporary replacement should be hired. Alves’s daughter responded that details could not be provided and the employer should hire a temporary replacement. The employer contacted Alves directly a week later, with no response. Further contact was attempted with Alves’s daughter, but again, no response was received.

In December 2024, the employer sent a letter to Alves’s home address in relation to being unable to contact her and stating that they had “been left to presume that you may have abandoned your employment”. A response was requested to be provided within 14 days. In January 2025, a further letter was sent to Alves advising that the company now considered she had abandoned her employment, and accordingly her employment was to be terminated immediately. In February 2025, Alves’s daughter provided a response to the 2 letters from the employer, advising the notice of termination had been received.

Legal Position

Alves claimed that she was dismissed in contravention of sections 351 and 352 of the Fair Work Act 2009 (Cth) (“FWA”). The claim was filed 21 days after the deadline expired to do so, however, the Commission granted leave to extend the time to file.

The employer argued that the termination of Alves’s employment was not a result of their “initiative”, but rather a necessity following “the lengthy and unexplained absence of Ms Alves by which she effectively had renounced her employment relationship”. The employer also submitted that Alves failed to dispute the abandonment. Citing the Abandonment of Employment Full Bench, the Commission stated that “Abandonment of employment arises in circumstances where an employee is absent from the workplace without communicating with the employer to provide a reasonable excuse or explanation for the absence”.

John David Bourke & Jamie Clifford and Others v OS MCAP Pty Ltd [2022] FWCFB 178 stated that the test for whether there has been an abandonment of employment is “an objective assessment, of “whether the employee’s conduct is such to convey to a reasonable person in the position of the employer and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment””.

The 4 main components of the test for abandonment of employment are whether there is an “unexplained or unauthorised absence from the workplace”, if the employee has been absent for a reasonable period without any “explanation or authorisation”, whether there was communication “from the employee during the absence or the communication from the employee clearly displays an intention of not returning for work” and whether the employer made enquiries with the employee during the absence.

The Commission found that the employer was never fully advised of the extent of the medical condition suffered by Alves, and they had only received one medical certificate. The Commission stated “on an objective assessment of Ms Alves conduct in not explaining her absence from work after 19 November, based on the facts reasonably known to CNA, CNA was entitled to conclude, in the absence of any detailed explanation of her medical conditions or the period for which she would be absent, that by 19 December she had repudiated her employment relationship”.

Alves’s application was dismissed due to lack of jurisdiction, with the Commission finding that the employer did not dismiss her.

Lessons for employers:

• Lack of communication from an employee about the nature of their medical condition despite attempts at contact by the employer weighs in favour of abandonment of employment.
• Abandonment of employment needs to consider whether there has been a termination of employment at the initiation of the employer. If so, then there is no abandonment.
• If the 4 components are made out, it is likely to be deemed that the employee abandoned their employment.

If you would like to discuss this or other workplace issues, please contact Andrew Bland or call 02 9412 3077.