What is Abandonment of Employment?

Abandonment of employment arises when an employee is absent from work for an extended period without providing any notification or explanation to their employer.

While it may seem straightforward for an employer to consider termination by dismissing the employee due to that employee’s choice, and thus absolve any risk of unfair dismissal or obligation to provide notice, courts do not consistently interpret this scenario in such a manner.

How long does an employee need to be absent before it is considered abandonment of employment?

There isn’t a fixed time frame defining when an absence transforms into abandonment of employment. This determination varies based on the specifics of each situation. Nevertheless, employers should undertake reasonable measures to reach out to the employee to ascertain their intentions before presuming that they have abandoned their employment.

What should an employer do if they suspect that an employee has abandoned their employment?

If an employer suspects that an employee has abandoned their employment, they should take reasonable steps to get in touch with the employee to clarify their intentions. If, after a reasonable period, the employer is unable to make contact with the employee, they may reasonably conclude that the employee has indeed abandoned their employment.

What is the abandonment of the employment process?

When an employee fails to report to work without notifying the employer of the reason, it is advisable for employers to adhere to the following process:

  1. Contact the employee: The employer should attempt to contact the employee by any means available (i.e. telephone, mobile, email, through work colleagues, etc.);
  2. First letter: If the employee cannot be reached the employer should write to the employee at their last known address by registered post (so the employer has proof sending). This should state that the employer is concerned for their well-being due to the employee having not reported to work as required. The letter should require the employee to explain the reason for their absence, why they have not contacted the employer, and what their intentions are regarding returning to work. The letter should state a time by which a response is required (eg within 7 days, etc). The same message should be sent by email/text message, etc.
  3. Second letter: If no reply is received to the first letter, a second letter should be sent by registered post advising that if the employee does not respond by a certain date their employment will terminate due to abandonment on that date. The safest approach would be to set the date for termination at the expiry of a period equivalent to the employee’s entitlement to notice. That way the employee will not be able to argue they were not provided with their required notice period. The same message should be sent by email/text message, etc.
  4. Termination letter: If the employee does not respond the employer should confirm in writing that their employment has terminated due to abandonment and pay out any accrued entitlements.
  5. An employee who has failed to attend work without reasonable excuse will not be entitled to be paid for the period they are absent.
  6. If the employee does get in contact after the employer has written to them then the employer should consider whether the employee had a reasonable excuse for not being in touch. In appropriate circumstances, this can be treated as a disciplinary matter which could justify issuing a formal written warning or (if sufficiently serious) termination of employment, on the basis of unauthorised absence.

Note: some Modern awards have historically contained provisions dealing with abandonment of employment, however, the law in this area changed in 2018.

Can an employer terminate an employee for abandonment of employment?

Yes, an employer has the authority to terminate an employee for abandonment of employment if there is a reasonable belief that the employee has indeed abandoned their role. However, it is imperative for the employer to adhere to due process and ensure that they have made reasonable attempts to contact the employee before proceeding with termination.

Can an employee claim unfair dismissal if they have been terminated for abandonment of employment?

Yes, an employee retains the right to file a claim for unfair dismissal if they have been terminated due to abandonment of employment, particularly if they perceive their termination as harsh, unjust, or unreasonable. Nonetheless, the employer might have grounds to defend against such a claim by demonstrating that they had reasonable cause to believe that the employee had indeed abandoned their employment.

What should employers do to prevent abandonment of employment?

Employers ought to establish explicit policies and procedures to handle employee absences and tackle cases of abandonment of employment effectively. It is imperative to uphold consistent communication with employees and offer support in instances where they encounter personal or work-related challenges that could impact their attendance.

Are there any penalties for not complying with abandonment of employment laws?

Employers who fail to adhere to abandonment of employment regulations may face penalties and legal repercussions. It is imperative for them to ensure compliance with pertinent laws and regulations.

Courts typically view the termination of employment due to abandonment as a prerogative of the employer, given their discretion to either prolong the employment despite the lack of contact from the employee or terminate it. Therefore, it is crucial for employers confronted with potential abandonment of employment scenarios to follow a structured process to safeguard against claims and ensure compliance with legal obligations.

There have been instances where an employer assumed abandonment, only for the employee to successfully claim unfair dismissal. This could occur if the employee had a valid reason for the lack of contact, such as illness or an emergency, and/or if the employer failed to exert sufficient effort to reach out to the employee.

Can employers withhold pay if an employee has abandoned their employment?

No, employers cannot withhold pay if an employee has abandoned their employment. They should pay the employee for any work that they have done up until the point of abandonment.

 

About HR Connect

HR Connect is one of Australia’s leading providers of Human Resources services designed to increase productivity and ensure compliance within small to medium businesses. We provide actionable solutions through tailored HR advice – including compliance health checks through an HR audit, HR documents for compliant policies and procedures, WHS compliance, and advice on employment.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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