Abandonment of employment

Great question…and abandonment of employment is a topic with potential to cause confusion when such a situation occurs. Let’s break it down and clear it up.

What is abandonment of employment?

Abandonment of employment arises in circumstances where an employee:

• is absent from work without a reasonable excuse;
• for an unreasonable period of time; and 
• has not communicated to the employer any reason for the absence. 

First steps to addressing an abandonment of employment situation

The employer should make a genuine attempt to contact the employee to ascertain the reason/s for their absence from the workplace. We suggest any contact emails to the employee have automatic receipt notification activated.

If verbal and email contact is unsuccessful, the employer should send a letter to the employee’s last known postal address via registered post. This letter should:

• describe the employer’s attempts to contact the employee
• notify the employee of a specific date by which if no contact is made by the employee to explain their absence, the employer will deem the employee to have abandoned their employment and that appropriate termination payments will be made.

Any Fair Work/legal considerations to consider?

For an employee to have abandoned their employment, it must be clear that the employee has demonstrated an intention to no longer be bound by the terms of their Contract of Employment.

A court or industrial tribunal is likely to focus on the intention of the employee rather than the period of their unexplained absence.

it is important to note that an intention to abandon employment will not lightly be found or inferred. The two key factors are:
i) that the employee has made no attempt whatsoever to contact his or her employer; and
ii) the period of unauthorised and / or unexplained absence is sufficient.

Bottom line?

During the preparation process involved with an abandonment of employment situation, the employer should review the employee’s Contract of Employment as well as any Modern Award that applies. There are six Awards containing a specific abandonment of employment clause. In a recent decision, a Full Bench of the Fair Work Commission (FWC) has decided to remove abandonment of employment clauses from these Modern Awards, to be replaced once a suitable provision has been determined. Given the fluidity of this FWC determination at time of writing, employers should seek updated advice from the Fair Work Infoline, workplace relations expert or experienced HR Consultant.

Need some help with HR or employment situations? Give Bare Bones Consulting a call…we make things easy so you can move on.