Case deals with worker who disappeared for four months – how long is 'too long'?
How long can HR allow an employee to be absent from work until it is considered an “abandonment of employment”?
A recent Fair Work decision has dealt with the issue of an employee who stopped responding to the employer’s communications and did not provide an explanation for the period that she went away.
The employee was casually employed as a sales assistant at a hardware store. She told her employer that she could not work from 15 March 2021 until 21 March 2021 but did not provide a reason for her absence. She did not inform her employer that her absence would be longer than one week, and afterward, she did not attend two rostered shifts after the notified period of absence.
When the employer tried to communicate with her, she did not respond to phone calls or messages over multiple days. When the FWC asked her why she failed to answer the employer’s inquiries, she said she “needed to take time away from working.”
She answered, “[I experienced] mental distress because I was also at uni at the same time. So I needed some extensions and things like that.” When asked by the employer if she could produce medical certificates as evidence, she responded: “I don't have an answer for that. Sorry. Not sure.”
According to records, the employee only made contact after four months. She talked to the employer’s general manager (rather than her manager) in July 2021, seeking to perform marketing work connected to her university’s requirements. The employer declined and said she was no longer an employee.
When is there “abandonment of employment”?
“Where 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. This may be termed a renunciation of the employment contract,” the FWC explained.
“The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it,” the FWC said.
“Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations,” the FWC added.
The FWC’s decision
The employee did not attend rostered shifts, did not reply to calls and messages and even changed her residential address. She did not contact the employer for four months until she approached it for a marketing service proposal aligned with her studies. The FWC said that her conduct justified the employer’s decision to end her employment.
As to her “mental distress,” the FWC noted that if the employee was “unwell,” it said that “taking a break” is not reasonable since she did not specify the length of the intended break and waited a significant amount of time to contact the employer.
Thus, the FWC found that she had abandoned her employment following the renunciation of her duties as an employee.
Takeaways for HR leaders
- Clarify the intention behind an employee’s absence and ask for the period to be specified;
- Ensure that employees could provide an estimated return date, if possible;
- If an employee exceeds the period of notified absence, ask for necessary proof of their justifications;
- Don’t forget to check in on their well-being and ask for appropriate updates.
