On 17 December 2018 the Fair Work Commission made a decision regarding abandonment of employment clauses in modern awards.

Earlier in the year the Commission had determined to remove the abandonment of employment clauses in the six modern awards in which they currently appear and to replace the clauses with a new clause (see the earlier decision here).

Awards to be silent on abandonment of employment

However, the Commission has now decided that there will be no replacement clause, rather, the awards will simply be silent on abandonment of employment.

The awards that currently deal with abandonment of employment typically state a set number of days which an employee can be absent without explanation before their employment will be considered terminated due to abandonment.

Removing these provisions from awards will mean that employers will need to follow “common law” principles regarding abandonment of employment.

Common law principles regarding abandonment of employment

The common law in this area is far from straight-forward. You might think that where an employee abandons their employment, there will be no risk of unfair dismissal or an obligation on the employer to provide notice (as the choice to end the employment has been the employee’s rather than the employer’s), however the courts do not always interpret the law in this way! See our Knowledge Base article on this area for further details.

The six modern awards affected by the Fair Work Commission’s recent decision (together with the relevant clause numbers) are:

The Fair Work Commission will confirm the date the provisions will be removed, shortly.

Need help?

If you require help dealing with abandonment of employment or drafting correspondence to an employee “missing in action”, Employment Innovations can help. Our subscription products include access to unlimited telephone and email advice and have options where you are provided with template letters and other HR documents.