A recent question about an employee who took annual leave without obtaining permission raised the issue about whether an employee has abandoned their employment.
What happens when your workers don’t come back when they are due? How long do you have to wait before assuming they are not coming back? And then what can you do?
Abandonment of employment
“A contract may be terminated by abandonment. This occurs where an employee walks off the job or fails to return from a period of authorised leave, in circumstances that make it reasonably apparent they no longer intend to be employed. This might well be analysed as repudiation by the employee, so that the contract is actually terminated by the employer when accepting that the employment has ended. But there are decisions to the effect that termination by abandonment does not constitute a ‘dismissal’ or ‘termination’ by the employer.”
Abandonment of employment occurs when an employee fails to turn up to work and has not given their employer any reason why, or been in contact. An employee’s abandonment of their work is considered reasonable grounds for dismissal, particularly if it is reasonable to conclude that they no longer wish to work for you. Remember it is a dismissal, not just an acceptance that the employee has ‘resigned’.
However, it is important to remember that abandoning the job is not a form of resignation, even if the employee regards it as such.
Just because an employee doesn’t turn up to work, doesn’t mean that they have necessarily abandoned their job. In most cases a court or tribunal is likely to focus on the intention of the employee rather than the period of unexplained absence, so a key to working out what you should do will come from ascertaining what the worker’s intentions are.
The bar for terminating a worker’s employment due to abandonment is set very high. It is important to note that abandonment of employment is treated differently to an unforeseen event that makes it impossible for an employment contract to continue. Events include things like the death or the imprisonment of the employee—they should be events that neither you nor the employee contemplated when the contract was signed.
These events may automatically terminate a contract without action from either you or the worker. It may mean that the employee is not entitled to claim for notice, a redundancy package, dismissal or unlawful discrimination. But again, the bar for proving this is set very high. To work out your best course of action you should:
Step 1: Contact the employee
Typically, you will have spoken to the employee on the first day of their absence—which may mean the process below can be expedited. However, if this is not possible, you should attempt to speak to the employee—either in person or on the phone—by the third day to ask what is going on.
When you do this, ask for an explanation and tell the employee that you will assume they have abandoned their employment if they do not respond in a specified timeframe. You should also put these questions to the employee in writing, including a request for an explanation and a timeline for an expected response.
It would be best to send this letter by registered post, so you have proof that the letter was posted and can get proof that the letter was received.
Step 2: Contact relatives
If you cannot contact the employee directly, try to contact a relative or the employee’s next of kin. You must take steps to do this before concluding that the employee has abandoned their employment, because the employee may not be able to contact you themselves due to circumstances beyond their control, such as hospitalisation.
Step 3: Determine what action to take based on the employee ’s response
If the employee responds to your queries but does not give a satisfactory reason for their absence, it will become a disciplinary matter. If the employee does not respond to you in the timeframe specified in the letter—and you can be sure that they have received it—then you can assume that they have abandoned their employment and can proceed with any termination payments.
Review your employee contracts and any awards that your workers might be subject to, as some have a set of rules covering abandonment of employment that you should observe. There are five awards that contain a clause that allows an absence of more than three days as evidence a worker has abandoned their employment, and an absence of 14 days without reasonable cause showing clearly that they have.
However, even under those awards, the employee’s abandonment of employment does not equal an automatic termination of employment.
Abandonment of employment clause requires the employer to take an active step to terminate the employment.