Abandonment of Employment
What is abandonment of employment?
Abandonment of employment occurs when an employee fails to show up for work for an extended period without giving any notice or explanation to their employer.
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.
How long does an employee need to be absent before it is considered abandonment of employment?
There is no set timeframe for when an absence becomes abandonment of employment. It depends on the circumstances of each case. However, employers should make reasonable efforts to contact the employee to determine their intentions before assuming that they have abandoned their employment.
What should an employer do if they suspect that an employee has abandoned their employment?
If an employer suspects that an employee has abandoned their employment, they should make reasonable efforts to contact the employee to determine their intentions. If the employer is unable to contact the employee after a reasonable period, they may assume that the employee has abandoned their employment.
What is the abandonment of the 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.
Note: some modern awards have historically contained provisions dealing with abandonment of employment, however, the law in this area changed in 2018.
Can an employer terminate an employee for abandonment of employment?
Yes, an employer can terminate an employee for abandonment of employment if they have a reasonable basis to believe that the employee has abandoned their employment. However, the employer should follow due process and ensure that they have made reasonable efforts to contact the employee before terminating their employment.
Can an employee claim unfair dismissal if they have been terminated for abandonment of employment?
Yes, an employee can claim unfair dismissal if they have been terminated for abandonment of employment if they believe that their termination was harsh, unjust or unreasonable. However, the employer may be able to defend the claim if they can demonstrate that they had a reasonable basis for believing that the employee had abandoned their employment.
What should employers do to prevent abandonment of employment?
Employers should have clear policies and procedures in place for managing employee absences and addressing abandonment of employment. They should also maintain regular communication with their employees and provide them with support if they are experiencing any personal or work-related issues that may affect their attendance.
Are there any penalties for not complying with abandonment of employment laws?
Employers who do not comply with abandonment of employment laws may be subject to penalties and legal action. They should ensure that they comply with the relevant industrial relations laws and regulations.
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.
Can employers withhold pay if an employee has abandoned their employment?
No, employers cannot withhold pay if an employee has abandoned their employment. They should pay the employee for any work that they have done up until the point of abandonment.
About Employment Innovations
Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.
The information provided in these blog articles 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.
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