This case considers the law around an employee going AWOL
In a recent case, the Fair Work Commission considered whether an applicant’s lengthy absence from work constituted his abandonment of employment. The applicant had worked part-time with the respondent, SA Trailer and Chassis Equip, since 2017. He also cared for his 11-year-old son, who suffers from ADHD. Naturally, the applicant’s carer responsibilities increased during school holidays and other occasions where his son did not attend school.
In 2020, the applicant suffered a compensable wrist injury and a seizure, both of which hindered his ability to work. He was subsequently also treated for depression and anxiety. The respondent conceded that it was aware of the applicant’s medical and personal issues.
The applicant failed to attend work between 17 December 2020 and 12 February 2021, which included a two-week period where the respondent was closed over the holiday period. Throughout December, the applicant sent several text messages and provided three medical certificates to the respondent to explain his absences. However, the applicant did not communicate with the respondent during January or February.
The respondent opined that the applicant was unreliable, that he did not appreciate the seriousness of his failure to attend work for over five weeks and that his behaviour was unlikely to change. With this, it concluded that the applicant had abandoned his employment.
The Commission referred to a previous case, where it was found that “abandonment of employment” describes a situation in which “an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract”.
“The test is whether the employee’s conduct is such to convey to a reasonable person in the position of the employer… that the employee has repudiated their duty to meet their obligations under the contract of employment,” the Commission said.
The Commission found that the respondent’s failure to contact the applicant to ascertain the reasons for his non-attendance was inconsistent with the actions of a reasonable person, given the respondent’s knowledge of the applicant’s personal and medical circumstances. With this, the Commission was not satisfied that the “abandonment of employment” was made out.
Key Takeaways:
- An employee’s prolonged or unexplained absence does not automatically give rise to their abandonment of employment
- An employee will be found to have abandoned their employment where a reasonable person would conclude that the employee has rejected their work obligations
- Employers should take steps to ascertain the reasons for an employee’s failure to attend work before making any decisions regarding their dismissal
- Failure to do so may give rise to an unfair dismissal
