Understanding and Responding to Abandonment of Employment

Understanding abandonment of employment

The term "abandonment of employment," also known as "employee no-show," describes a situation where an employee stops coming to work for a significant period of time without providing a valid reason or explanation. This essentially signifies that the employee is unwilling or unable to fulfill their job responsibilities, suggesting they have effectively resigned from their position.

Recognising employee abandonment

Determining whether an employee has abandoned their role can be difficult to determine, but some key indicators exist. Here's what to look for:

Extended absence

‍The employee has been missing work for a significant and unexplained duration. What constitutes "significant" can vary depending on the industry, company policies, and the specific job itself. A brief missed day or two wouldn't necessarily signify abandonment, but a noticeable gap in their usual schedule could raise concerns.

Lack of justifiable reason

‍Despite their absence, the employee hasn't offered a valid explanation. While unforeseen circumstances can occur, they haven't communicated a justifiable reason for their extended absence. Remember, it's important to investigate further before assuming the worst.

No communication

‍The employee has made no attempt to contact their employer about their absence, despite efforts to reach them. This lack of communication is a crucial factor, as it demonstrates a disregard for their job responsibilities and the employer's need for understanding.

It is important that employers do not rush to conclusions as a short absence alone doesn't necessarily translate to abandonment. Always investigate the situation thoroughly before jumping to conclusions or taking any action. To determine that an employee has abandoned their role, all three conditions mentioned above must be present. One or two instances may not provide enough grounds to confirm an employee has resigned by way of abandonment.

The Fair Work Act and employee abandonment

The Fair Work Act (2009) does not define abandonment of employment. Instead, courts and the Fair Work Commission treat abandonment as the employee's "renunciation" (repudiation) of their employment contract, signifying the employee's intention to give up their job. Importantly, it is the employee's conduct, rather than just their words, that holds the key. If their actions would lead a reasonable person to believe they've relinquished the entire contract or a fundamental obligation within it, that constitutes abandonment.

While the employer ultimately initiates the termination of the contract, they should only do so when the employee's renunciation can be clearly demonstrated. Even though it's the employee's conduct that triggers this process, the employer takes the final step of ending the employment, so the Fair Work Commission may treat it as a dismissal.

Modern awards and abandonment

While some modern awards used to include abandonment clauses, a 2018 Full Bench decision found they cannot end employment automatically, and they were removed from industry awards. This means businesses can no longer directly rely on modern awards for a specific "abandonment process" when dealing with such situations.

What does this mean for employers? There's no one-size-fits-all abandonment process outlined in modern awards. Each situation requires individual assessment and adherence to broader legal principles. General legal principles, including the unfair dismissal rules in the Fair Work Act 2009, now guide how abandonment is handled. Remember, the key factor is whether the employee has "renounced" their employment obligations.

Responding to employee abandonment

When an employee stops coming to work and doesn't provide a valid explanation, it can be concerning and raise questions about potential abandonment. Here's a step-by-step guide to help you navigate these situations while ensuring legal compliance:

1. Start by trying to reach the employee through various channels, including phone calls, emails, and text messages. Document all your attempts and their response (or lack thereof).‍
2. If initial attempts fail, send a registered letter to their home address requesting contact within 7 days. Explain the need for an explanation regarding their absence and mention the date they were last seen at work. Keep a copy of the letter and proof of delivery.‍
3. If you still receive no response, send a second registered letter within 7 days of the first one. Clearly state that their continued silence will be interpreted as abandonment of employment from their last work date. Attach copies of the previous communication attempts.

While the 7-day timeframe mentioned is commonly used, it's not a rigid rule. Consider individual circumstances and adjust the timeframe if necessary to ensure fairness and allow for possible unforeseen situations. Remember, these steps alone don't definitively prove abandonment. They demonstrate reasonable efforts to communicate and document the situation.

It's important to involve HR professionals familiar with relevant employment laws and the Fair Work Act. They can guide you through the process, ensure you adhere to legal requirements, and advise on next steps based on the specific situation.

Termination by way of abandonment

Even though an employee's contract is terminated for abandonment, you are still legally obligated to pay them for their due entitlements. This includes any outstanding wages earned up to their last working day, as well as any accrued and unused annual leave and long service leave they may have accumulated.

While mandatory payments like these cannot be withheld, there is a possibility to recover pay equivalent to the unserved notice period under certain conditions. This depends on specifics like the employee's contract, relevant modern award, and the circumstances surrounding the abandonment.

If any deductions are made, clearly communicate the reasons and calculations to the employee, and maintain detailed records for potential future inquiries or disputes.

Navigating employee abandonment

While an employee's absence without explanation might suggest abandonment, taking appropriate steps before considering it protects your business. Remember, unforeseen circumstances could genuinely prevent them from contacting you. Always make reasonable attempts to contact the employee through various channels like phone calls, emails, and texts. Document your efforts and any responses received.

Following a fair and reasonable process is key, as neglecting this can open your business up to legal challenges. An employee who feels unfairly dismissed, especially in an abandonment scenario, can submit an unfair dismissal application. This application allows the Fair Work Commission to investigate the situation and, if it finds the dismissal was unfair, order reinstatement or compensation. If a claim is made, our Fair Work representation for employers service can help.

To avoid these issues and ensure you're adhering to legal requirements, seeking independent legal advice is strongly recommended before taking any action. HR professionals familiar with employment law and the Fair Work Act can provide valuable guidance specific to your situation. They can assess the evidence, advise on proper communication channels, and help you navigate the appropriate procedures to respond to the employee's absence while protecting your business.

If you need further advice on abandonment of employment, Employment Compass can provide assistance. Call our 24/7 HR advice line on 1300 144 002 for more information.

How long does an employee need to be absent for it to be considered abandonment?

There's no single answer, as it depends on various factors like industry norms, company policies, and the specific job role. A brief missed day wouldn't necessarily signify abandonment, but a noticeable gap in their usual schedule, coupled with the absence of communication, could raise concerns. Remember, it's crucial to investigate before rushing to conclusions.

Is abandonment considered dismissal or resignation?

While the employer terminates the employment contract in this scenario, it's the employee's actions (or lack thereof) that are seen as a "renunciation" of their job obligations. However, because the employer usually takes the final step of ending the employment, the Fair Work Commission can treat it as a dismissal at the employer's initiative, so the employee may be able to make an unfair dismissal claim. Follow a fair process and keep records.

Is abandonment considered serious misconduct?

Abandonment itself doesn't automatically fall under "serious misconduct" as defined by relevant legislation. However, the specific circumstances surrounding the abandonment, like any accompanying communication or actions by the employee, might influence this categorisation. Consulting legal professionals for specific guidance is always recommended.

What situations wouldn't be considered abandonment?

If an employee has a valid and justifiable reason for their absence and communicates this to the employer promptly, abandonment wouldn't be applicable. Similarly, unforeseeable circumstances like sudden illness or injury (with proper documentation) wouldn't constitute abandonment.

What if an employee is sick or injured?

Employees have legal rights related to sick leave and personal leave. If an employee becomes sick or injured and informs their employer, even if communication delays occur due to their condition, it's important to handle the situation with understanding and consider relevant leave entitlements. Seeking legal advice in such cases is always advisable.