What does abandonment of employment mean?
The term ‘abandonment of employment’ is used to describe a situation when an employee ceases to attend his or her place of employment for an extended period of time without providing a reasonable excuse or explanation. As a result, the employee has shown an unwillingness or an inability to meet his or her employment obligations and has effectively abandoned their role.
Employees who abandon their position without explanation are often deemed to have resigned without giving notice, sometimes meaning the employer has reasonable grounds to end an employment contact.
When does abandonment of employment occur?
Are you wondering if an employee has abandoned their role? Abandonment of employment generally occurs when an employee doesn’t:
Come to work for a specified period of time.
Have a reasonable excuse for their absence.
Speak to their employer about being away.
If all three of these circumstances apply, it’s reasonable for you to deem that the employee has abandoned employment.
Provisions in The Fair Work Act
The Fair Work Act (2009) defines abandonment of employment as the ‘renunciation’ of an employment contract. According to the Act, the test for abandonment of employment is whether the conduct of the employee would convey to a reasonable person the renunciation either of an employment contract or a fundamental obligation within it.
In cases of proven renunciation, the provisions of the Act entitle the employer to terminate the employment contract. While it is the employer who terminates the employment contract, it is the employee’s renunciation of their employment obligations that has effectively ended the employment relationship.
Do you know the correct process for terminating staff?
Australian employees are protected by wrongful termination laws. If you decide to dismiss an employee, be sure to handle the matter carefully and follow all the correct processes. Download our FREE E-Guide to find out more.
Provisions in modern awards
Modern awards no longer contain provisions for abandonment of employment. A small number of modern awards did contain clauses, but they stopped applying from the first full pay period on or after 20 December 2018.
Previously, modern awards laid out an abandonment of employment process for employers to follow. Many businesses continue to use this same process, enabling them to respond to cases of abandoned employment lawfully.
What to do about abandonment of employment
For employers, the abandonment of employment process involves completing the following steps:
If the employee fails to report for work, make an attempt to contact the employee via telephone, mobile phone, or email.
If the initial communication is unsuccessful, send a letter via registered post to the employee’s home address asking them to contact you within 14 days and give a reason for their absence of the date of the letter.
If no reply is received by the specified date, send a second letter via registered post stating that if they do not contact you within 14 days of the date of this letter it will be accepted that they have abandoned their employment.
If the employee fails to respond to the letters and give a satisfactory reason for the absence, the employer may assume the employee has abandoned their employment from the date the employee last attended work.
Termination payments
If an employee’s contract is terminated for abandonment of employment, any outstanding wages, annual leave and long service leave must be paid to the employee.
In some cases, employers may be able to withhold wages for any period of notice not served by the employee in accordance with their modern award, employment contract or employer agreement.
What else should an employer do?
Employers should always make reasonable attempts to contact an employee who seems to have abandoned their employment. This is because the employee could be experiencing exceptional circumstances and genuinely unable to contact the employer, despite their best intentions.
If you end a contract without following a fair and reasonable abandonment of employment process, this can result in the employee submitting an unfair dismissal application. Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
The Fair Work Commission can investigate whether an employee has been unfairly dismissed during an abandonment of employment case. If found guilty of unfair dismissal, the employer can face financial penalties. Before taking any action in response to abandonment of employment, it’s always advisable for employers to seek independent legal advice.
Frequently Asked Questions
How long does the absence need to be?
If an absence lasts more than a period of three sequential working days without proper notification being given, this will generally be considered abandonment of employment.
Is abandonment of employment considered dismissal or resignation?
An employee’s abandonment of their work is considered reasonable grounds for dismissal, particularly if it is rational to conclude that they no longer wish to work for you.
While it will be the employer who ends the employment contract, it is the employee who has refused to attend work and effectively ended the employment relationship.
Is abandonment of employment serious misconduct?
An absence for an unreasonable amount of time without a proper excuse is considered serious misconduct. In some cases, this misconduct can breach workplace policies, as well any abandonment of employment clauses that may be inserted into an employer contract.
What is not considered abandonment of employment?
There are many situations when an employee might be away from work for a prolonged period and the circumstances are not considered abandonment of employment. These include:
- – Taking an appropriate length approved leave (including annual, unpaid, personal and parental leave).
- – Being absent from work for a reasonable period for physical or mental health reasons.
- – Time away from work for an agreed leave of absence.
An employee who is unwell, or can’t go to work for another reason, should always let their employer know as soon as possible.
What if an employee is ill or injured?
If the employee provides a medical certificate proving illness or injury, their absence cannot not be construed as abandonment of employment or serious misconduct. Subsequently, an employee cannot be terminated for abandoned employment on the grounds of failing to attend work for medical reasons.
If you’re struggling with abandonment of employment, talk to Employsure before taking any action. We’re specialists in all aspects of dismissals, whether fair or unfair. Call our FREE 24/7 Advice Line today on 1300 651 415 for expert guidance.
