There is often a big question mark for employers over what exactly constitutes abandonment of employment
by Amber Chandler, Partner, Barker Henley
There is often a big question mark for employers over what exactly constitutes abandonment of employment.
For instance, an employee fails to show up for work one day. By noon a supervisor calls them to see where they are, but the phone rings out and a voice message is left. The next day, the employee again fails to show up. Further attempts are made to call them to no avail. Work is piling up. Rosters have to be changed at the last minute. Other staff have to start rearranging their work schedules and absorbing the employee’s tasks.
Has abandonment of employment occurred? What does an employer need to do about it? Just let it go and take the time off out of the employee’s leave balance? Issue a formal letter noting abandonment of employment has occurred? Issue a letter of termination?
4-Yearly Review of Modern Awards
In conjunction with its 4-yearly review of modern awards, the Fair Work Commission recently released a decision commenting on the procedural issues surrounding abandonment of employment. By way of background, the Commission had, prior to this review, issued a decision deleting provisions in six modern Awards which dealt with abandonment of employment on the basis that these provisions were not necessary to ensure the modern Awards’ objective.
However, submissions were made as part of the review proposing that a provision be inserted in to the Manufacturing and Associated Industries and Occupations Award 2010 which identified procedures to be followed in the
event of apparent abandonment of employment. The proposed provision identified consultation obligations applicable in the event that an employee had been absent from work for 3 or more consecutive working days without authorisation, explanation or notification to the employer.
The Commission’s decision was as follows:
“…the provision cannot be regarded as necessary to meet the modern awards objective. The situation with which the provision is concerned is, in our experience, fairly rare; the steps, if any, which it may be appropriate for the employer to take in that situation will depend upon the precise circumstances; and if the employee has truly abandoned his or her employment, then it is at least arguable that the employer owes the employee no duty of procedural fairness.
Accordingly, in the absence of any consensus among the parties as to the terms of a provision which would meet the requirements of S138, we will not replace the provisions … with any new provision.”
While this decision is limited to the inclusion of the proposed provision in that particular award, the statement made about abandonment by the Commission gives some guidance to employers in situations where they are faced with the difficult task of dealing with unpredictably absent employees.
The statement that “if the employee has truly abandoned his or her employment, then it is at least arguable that the employer owes the duty no procedural fairness”, indicates that there may be less of an onus on an employer to take steps to make enquiries of the absent employee, or to give them notice that termination of employment will occur.
However, it is important to also look at what approach the Fair Work Commission has taken in specific cases of abandonment of employment.
The Case Law
Generally, abandonment of employment is defined as “circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent.” (see Sharp v MCG Group Pty Limited  FWA2357 as per Duty President Asbury.)
Traditionally, modern awards have allowed an absence of more than 3 days as evidence a worker has abandoned their employment and an absence of 14 days without reasonable cause showing clearly that they have. As stated above, these provisions no longer apply in modern awards. However, it is perhaps best
practice in our view to observe the rule of an absence of more than 3 days before considering whether abandonment of employment has taken place.
The Full Bench decision by the Fair Work Commission in January 2017 of Boguslaw Bienias v Iplex Pipelines Australia Pty Limited (2017) noted that in those particular circumstances where an abandonment of employment clause existed in the employment contract, the employer was required to take active steps to terminate the employment and the employee’s abandonment of employment did not equal an automatic termination of employment. In that situation, the abandonment clause in the contract required the employer to take an active step to terminate the employment in writing.
What is Not Abandonment of Employment
- When an employee has provided a medical certificate for an absence (note the “temporary absence” provisions of the Fair Work Act).
- When an employee has made a workers compensation claim and is unfit for work while being paid weekly payments under the claim.
- When an employee has taken authorised leave.
- Unnotified absence from work for up to 3 days.
Despite the Fair Work Commission’s comment about procedural fairness in the 4-yearly review case cited above, an employer should still take steps to act in situations where it appears the employee has abandoned their employment.
Prior to assuming that employment has been abandoned, it is important that the employer takes a preliminary step of making enquiries with all the employee’s managers to check that the employee had not given notice of the absence either in advance or during the absence which may provide a reasonable explanation for the absence.
It would also be advisable to make an attempt to contact the employee firstly with a telephone call, and, if there is no response, to follow up with a written request sent by email or registered post requiring the employee to provide an explanation for their absence by a specified deadline.
It is very important that the employer is aware of what provisions govern that particular employee’s employment--- whether that be a modern award, enterprise agreement or contract of employment --- as that particular instrument may contain a specific clause stating how abandonment of employment must be handled. Also, an employer may have a workplace policy dealing with absences which should be considered.
Generally, it is best practice in all circumstances to keep written records of the absences and the attempts at contacting the employee.
Finally, once all avenues have been exhausted and there is no explanation for the absences provided, an employer should always issue a letter stating that the employee’s employment has been terminated without notice, effective immediately, on the basis of abandonment of employment.
Amber Chandler is a Sydney-based lawyer practising in employment law. She leads the national employment division at Barker Henley.