An issue which sometimes arises in the workplace is where an employee appears to have abandoned their employment. In other words, the employee has been absent from work for a significant period of time and has not contacted the employer to provide a reason for the absence.
It might be assumed that in a situation like this an employer can simply treat the employment as having been terminated at the choice of the employee (and therefore no risk of unfair dismissal, or obligation on the employer to provide notice, will arise) however, this is not how courts always treat this situation.
Legal obligations when dealing with abandonment of employment
Courts have tended to treat termination of employment due to abandonment to be at the choice of the employer, given the employer can choose whether the employment can continue longer (despite the current lack of contact from the employee) or to terminate. This means it is important that employers facing an apparent abandonment of employment follow a process to help protect themselves from claims and ensure they have complied with all their legal obligations.
There have been a number of cases where an employer has decided that the employment was terminated due to abandonment, and the employee has gone on to successfully claim unfair dismissal, because the employee had an excuse for the lack of contact (illness, emergency, etc) and/or the employer did not do enough to try to contact the employee.
Abandonment of employment process
Where an employee has failed to report to work and has not notified the employer of the reason, we would generally advise employers to follow the process set out below:
- Contact the employee: The employer should attempt to contact the employee by any means available (i.e. telephone, mobile, email, through work colleagues, etc.);
- First letter: If the employee cannot be reached the employer should write to the employee at their last known address by registered post (so the employer has proof sending). This should state that the employer is concerned for their well-being due to the employee having not reported to work as required. The letter should require the employee to explain the reason for their absence, why they have not contacted the employer, and what their intentions are regarding returning to work. The letter should state a time by which a response is required (eg within 7 days, etc). The same message should be sent by email / text message, etc.
- Second letter: If no reply is received to the first letter, a second letter should be sent by registered post advising that if the employee does not respond by a certain date their employment will terminate due to abandonment on that date. The safest approach would be to set the date for termination at the expiry of a period equivalent to the employee’s entitlement to notice. That way the employee will not be able to argue they were not provided with their required notice period. The same message should be sent by email / text message, etc.
- Termination letter: If the employee does not respond the employer should confirm in writing that their employment has terminated due to abandonment and pay out any accrued entitlements.
- An employee who has failed to attend work without reasonable excuse will not be entitled to be paid for the period they are absent.
- If the employee does get in contact after the employer has written to them then the employer should consider whether the employee had a reasonable excuse for not being in touch. In appropriate circumstances this can be treated as a disciplinary matter which could justify issuing a formal written warning or (if sufficiently serious) termination of employment, on the basis of unauthorised absence.
Please note – some modern awards have historically contained provisions dealing with abandonment of employment, however the law in this area changed in 2018.
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The information provided in this knowledge base article is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.