How to determine whether an employee has abandoned their employment

The Fair Work Commission (FWC) recently had to determine whether an employee’s absence from her job in an accounting firm had been an abandonment of employment in Alves v T.C Investment Unit Trust (2025).

What is abandonment of employment?

Abandonment of employment arises when an employee is absent from the workplace, and they have not provided a reasonable excuse or explanation for the absence to the employer. If a reasonable person in the position of the employer, knowing the facts known to the employer at the time, would have concluded the employee no longer wished to work, then the employer can treat the employment relationship and contract as having ended by reason of abandonment.

If an employer wrongly treats a workplace absence of an employee as abandonment, it will be regarded as termination of employment at the initiative of the employer. This will expose the employer to a claim of unfair dismissal or a dismissal-related general protections claim.

3 significant determinative factors

What is significant in determining whether there has been abandonment is:

What the employer knew about the employee’s situation.
The steps the employer took to find out about the employee’s situation.
The steps the employee took to inform the employer of their situation.

Case background

In Alves v T.C Investment Unit Trust (2025), an accounting firm employee absented herself from work and texted the employer citing a migraine. The next working day, the employee texted the employer to advise that she was in hospital and “can’t make it to work”. Later that day, a medical certificate from the hospital was provided, stating that the employee was suffering from a medical condition and would be absent from work for a week. The employer was informed that the employee was managing some serious health concerns and had an ongoing medical condition, including stress and mental health issues, requiring her to temporarily step back from work.

For the next month, there was no communication to the employer about whether or when the employee would return to work. The employer made several attempts to ascertain the employee’s medical status and whether she would return to work. It sent a letter giving 14 days to provide an update on her health. When no update or other communication was forthcoming, the employer emailed the employee to advise that employment was ended and issue a final pay slip.

General protections application

The employee lodged a general protections application with the FWC, alleging that the employer had dismissed her because of her physical and mental disability. The employer made a jurisdictional objection on the basis that it did not dismiss the employee; instead, she had abandoned her employment.

The FWC ruled the employer was entitled to conclude, in the absence of any detailed explanation of her medical conditions or the period for which she would be absent, that the employee had repudiated her employment relationship. While it may have been that the employee was incapable of communicating with the employer, this was never explained to the employer. Therefore, the employee had abandoned her employment.

Key takeaway from the case

This case shows that the fact that an employee’s condition is such that they are unable to communicate with the employer is irrelevant to whether the employer can treat the employee’s absence as abandonment. Abandonment of employment is judged through the eyes of the employer.

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