What is abandonment of employment?
Abandonment of employment is a form of the termination of employment that is at the instigation of the employee. Abandonment of employment occurs when an employee fails to attend work for an extended period of time without providing their employer with a reason for their absence and fails to respond to enquires made by their employer about their non-attendance. On the surface, this situation may seem straight forward however the main question asked here is “was the abandonment at the discretion of the employee or due to factors initiated by the employer”? This is sometimes difficult for the employer to determine but is the first step in substantiating that a genuine abandonment has occurred.

The circumstance behind an employee’s alleged abandonment of their employment is extremely important in understanding if the abandonment was really voluntary or in fact brought on by the employer’s actions (possible constructive dismissal). This factor is critical especially where the employee goes on to make an unfair dismissal claim following their alleged abandonment. In such situations, the Fair Work Commission will not infer abandonment unless it is evident that the employee voluntarily ended their job without providing notice or an explanation for their extended absence.

Generally, conduct such as never returning after walking off the job or after a holiday without explanation and being absent from a job continuously for several working days without notification or the employer’s approval could indicate an employee has abandoned their employment. However, if an absent employee simply stops corresponding or refuses to have any direct communication with their employer, an employee’s position is less straightforward and requires further investigation before abandonment may be safely assumed.

There are a number of cases where an employee has brought an action claiming unfair dismissal but the employer has argued the employee abandoned their employment. The following highlights issues from such cases where abandonment was proven to not have genuinely occurred including:

• Employee did not provide satisfactory evidence for his ongoing absence and did not communicate the intentions of returning to work, but had written to his employer to renounce the notion he was abandoning his job – Christopher Jason Millard Wright v Department of Corrective Services [2012] WAIRC 00764.
• An employee took leave without the approval of his employer - Dun & Bradstreet (Australia) Pty Ltd v Robbie [1999] NSWIRComm 316 920 July 1999).
• An employee continued to be absent from work after the expiry of medical certificates and his first workers’ compensation certificate and his employer was not aware that his doctor had issued a new certificate and that he had lodged a worker’s compensation claim – J Searle v Moly Mines Limited [2008] AIRCFB 1088 (C2008/2011) (29July 2008).

Steps an employer should follow when determining if a genuine abandonment has occurred.
Employers should check relevant awards, agreements or policies to see if it provides information on what to do in the case of abandonment.
Where no direction exists, an employer should follow a few simple steps in the case of repudiation and abandonment of employment:

Step 1: Review leave records to ensure that the employee’s absence has not been authorised.

Step 2: As soon as you suspect the employee has no intention of fulfilling his/her obligations under their employment contract, attempt to contact them to discuss the issue and confirm your suspicions. Employers are often reluctant to make direct contact with an employee who is absent without reason but it is necessary to clarify and confirm what is going on with your employee. You may even consider attempting to contact the employee through other people such as work colleagues, family members or treating practitioners or even to visit the employee’s home. 

Step 3: If you are unable to contact them by telephone or they refuse to speak with you, send a letter by either registered mail or courier to their last known address stating that you believe they have abandoned their employment as they have failed to show up for work at the usual time and consequently their employment may be terminated. Your letter must request the employee to make contact with you to provide an acceptable reason for their absence or return to normal duty within a seven (7) day time frame. See Abandonment of Employment Sample Letter for further guidance.  Failure of the employer to explore all ways to contact the employee may indicate that the employment agreement remains ongoing and entitlements continue to accrue.

Step 4: Ensure that the employee has not contacted someone else in the workplace and provided a reason for their absence. Therefore, you may need to ask other staff if they know the whereabouts of the employee. Additionally, you may want to contact your workers compensation and medical personnel or other external providers.

Step 5: Consider any underlying issues behind the employee’s unexpected absence and investigate where necessary.

Step 6: If no response or other evidence has been received from the employee after seven (7) days then termination is assumed and a termination letter can be sent to the employee including any outstanding payments.

Step 7: Should the letter/s be returned unclaimed, keep it in the individuals employment file as proof of your attempt to contact them should they attempt reinstatement at some later date.

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