When Is Employment Abandoned?

Abandonment of employment usually arises in circumstances where an employee is absent from work, without a reasonable excuse, for an unreasonable period of time without having communicated to the employer any reason for the absence. This is not to say that employers have to put up with extended absences, but they do have to be careful.

It must be clear that the employee has demonstrated an intention to no longer be bound by the contract of employment. The employee is deemed to have repudiated the contract of employment and the employer’s acceptance of the repudiation is the termination event.

Employers should follow a number of steps to determine whether an employee has abandoned employment.

Make an attempt to contact the employee by means such as the phone or email. If no contact has been made with the employee, send a letter by registered mail to the employee’s home address appearing on the company’s letterhead asking the employee to contact the company as soon as possible. The essence of this request is to find out why they are not at work, if they intend to return, and the potential date for return.

Remember, to terminate an employee for temporary illness or injury (for example, they are lying unconscious in a hospital bed after an accident) would be not only unfair but potentially unlawful.

An employee’s absence for one or two days could not be construed as abandonment. This was the case in Moore v Levelan Pty Ltd (2004). There was an absence, it was not unreasonable and the employee had no intention of terminating his employment and the employer had invited the employee to consider his position over a few days.

If the employee has made no attempt to contact the company as to continuing their employment, or the excuse for the absence is unsatisfactory, the employer must assume that the employee has abandoned their employment from the date the employee last attended for work.

Another example is where an employee does not return from annual leave, but subsequently returns to work. In Sandic v Perroplas Australia Pty Ltd (2010) an employee did so and returned to work some seven weeks later. The employee was previously advised that failure to return from leave would result in termination of the employment. Fair Work Australia deemed the employee to have abandoned his employment.

Modern awards

Some modern awards contain a provision regarding abandonment of employment. This usually regards an absence of more than three consecutive working days without the employer’s consent and no notification to the employer. A further fourteen day period of absence without satisfying the employer there is a reasonable cause would result in the employee being deemed to have abandoned his/her employment.

For example, clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010 refers to abandonment of employment, although reference should be made to the relevant industrial instrument to determine the whether minimum periods of absence are stipulated before the employer can presume an employee has abandoned employment.

The General Retail Industry Award and the Food, Beverage & Tobacco Manufacturing Industry Award do not contain provisions regarding abandonment of employment, so employers need to fall back on decided cases for guidance when looking at abandonment of employment.

Unreasonable withholding of leave by employer

Where permission for leave of absence is unreasonably withheld by the employer and the employee proceeds on such unauthorised leave, abandonment of employment would not apply. See Dun & Bradstreet (Australia) Pty Ltd v Robbie [1999] NSWIRComm 316 (20 July 1999). The NES also provides that an employer cannot unreasonably refuse an employee’s application for annual leave.

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