Clarification of Abandonment of Employment
We often have enquiries from clients about the issue of abandonment of employment; where a staff member has not turned up for a shift or shifts and not provided any notification or reason for the absence. In some cases, employers have been premature in acting to dismiss that staff member for reasons of abandonment. In these cases, these have often resulted in unfair dismissal. When there’s possible abandonment of employment, we advise clients to tread very cautiously. Abandonment of employment is a complicated and risky area, and employers should not
lightly conclude that abandonment has occurred, especially if there is any slight indication the employee intends to return to the workplace.
Here is some clarification on this somewhat contentious issue.
Abandonment of employment arises where an employee is absent from work without a reasonable excuse for an unreasonable period of time and hasn’t communicated the reason for the absence.
To establish that a staff member has abandoned their employment, it must be clear that the staff member has demonstrated an intention to no longer be employed. The common law requirement is that the employee clearly indicates through their actions an absence of readiness or willingness to perform their contractual employment obligations and the employment is not terminated until such time as the employer accepts the employee’s repudiation and then terminates the employment contract.
How long before making the call about abandonment?
There is no set period that an employer must wait before they can assume an employee has abandoned their employment (subject to some Enterprise Agreement provisions). It used to be that some Awards required a period of at least three days’ unexplained absence before it could be considered that an employee had abandoned their employment. There is no longer any abandonment of employment clauses in the modern awards, as the Fair Work Commission (FWC) considered they were not necessary.
It is our view that anything less than 3 days without contact from the employee would create significant risk in making any assumptions about abandonment of employment. Depending on the circumstances, a longer period may be required. You need to consider the following in the context of the absence:
• the employee’s circumstances immediately prior to the unexplained absence;
• any physical or mental health issues;
• prior work behaviour and absences; and
• any contact with the employee during the current absence.
The Australian Industrial Relations Commission (Predecessor to the FWC) stated in the case of Erbacher v Golden Cockerel Pty Ltd “abandonment of employment is not quantified in time but requires an analysis of what happened at the time and a consideration of the intent of the employee.”
So here are the steps we recommend you should take before deciding to declare that an employee has abandoned their employment:
1. Make the calls (or emails or texts)
Try as much as you reasonably can to contact the employee (or members of their family) in the first couple of days. Before an employer should consider whether their employee has abandoned their employment, they need to try and find out what is going on. There are many legitimate reasons why an employee cannot contact the employer; the most obvious being hospitalisation.
This point has been reiterated by the FWC in a number of cases. The FWC Full Bench has stated in the 4 yearly review of modern awards that “an employer will normally be expected to have attempted to contact the employee to ask why they have been absent”
2. Formal Letter and email
If the phone, email or text contact is unsuccessful in the first day or so, the second step is to send a letter to the employee’s last known postal address. The letter should be sent by registered post as evidence that the employee received the letter. Such letter should contain the dates and times that contact has been attempted and advise the employee to contact the employer as a matter of urgency to explain the absence. It should also advise that if contact is not made within 24 hours of receipt of the letter then the employee may be dismissed for reasons of abandonment. You should also send that correspondence by email with the automatic receipt notification.
3. What if contact is made?
Where contact is established with the employee, it is important to obtain the reason for the absence and obtain any relevant evidence to support the reason for the absence (eg a medical certificate) and any indication of what their intention is regarding their on-going employment.
Where an employee provides a reason for their absence, consideration should be given as to whether the reason provided is valid to explain the absence. Where the reason provided is not considered valid, then any action should be dealt with consistent with the employer’s disciplinary procedure.
4. No further contact
If the employee fails to contact the employer within a reasonable timeframe after Step 2 above, then the employer may consider termination on the basis of abandonment of employment, taking into account all of the above.
In these circumstances it is advisable to send a final letter notifying the employee that the employer has taken all reasonable steps to contact the employee and as no contact has been established, the employer has declared that the employee has abandoned their employment, and therefore decided to terminate the employment contract.
5. The Termination
In terms of the termination of employment, the employee should be provided with notice in accordance with the National Employment Standards, however in some cases the abandonment could be considered as serious misconduct as it is inconsistent with the continuation of the contract of employment, and therefore capable of summary dismissal with no notice.
Our clear advice to our clients is consistent with the words of the AIRC and that is that there needs to be “a consideration of the intent of the employee” and not just premature assumptions made. If clients are faced with such circumstances, please contact us for advice as to the process.
For further information about consultation requirements, and the process to be followed for any of the above scenarios, please contact Effective Workplace Solutions.