Abandonment of Employment

What is abandonment of employment?

An employee is deemed to have abandoned their employment when three conditions are met.

Definition
🔎
Abandonment of employment refers to a situation in which an employee fails to attend work for no reason known to the employer, and it is reasonable to conclude that they no longer wish to work for the business.

An employee abandons their employment when they:

  • cease to attend their place of employment;
  • without proper excuse or explanation; and
  • as a result, show an unwillingness or inability to substantially perform their obligations under the employment contract.
📑
Example
Mary works for IBGH Inc. on a full-time basis. Employees of IBGH are required to notify their manager as soon as reasonably practicable if they cannot attend work, and give a reason for the absence. Mary is absent for a week without contacting her manager. Her manager makes several attempts to locate Mary and communicate with her, with no success.

If an employee acts in a way that would cause you to reasonably assume they are abandoning their employment, you can treat the employment as having come to an immediate end.

🔑
If an employee acts in a way that would cause you to reasonably assume they are abandoning their employment, you can treat the employment as having come to an immediate end.

Is abandonment of employment a dismissal?

Treating an employee as having abandoned their employment is not dismissal.

🔑
Where an employee has abandoned their employment, they are entitled to bring an unfair dismissal application under the Fair Work Act 2009 (Cth) (FW Act) because they have been dismissed.
🔎
Unfair dismissal occurs when an employee is dismissed harshly, unjustly or unreasonably.
🖋️
Taking detailed notes of your attempts to contact the employee will assist in showing that you have taken reasonable steps to ascertain whether an employee has abandoned their employment. By taking these proactive steps, as well as exercising the usual procedural fairness, you will limit your legal exposure by being in a strong position to defend an unfair dismissal claim.

When is an unexplained absence not an abandonment of employment?

An employee’s absence from the workplace will not always be an abandonment of employment.

Abandonment requires circumstances that would cause a reasonable employer to believe the employee has walked away from their employment and does not want to return. It doesn’t apply where there is a frustration of the employment contract.

🔎
Frustration is where a contract comes to an end because of an event that is not the fault of either party.

Examples of frustration of the employment contract are where the employee does not show up for work because they are imprisoned or they are deceased.

Just because an employee does not attend work without excuse or approval, does not mean you can assume they have abandoned their employment.

Just because an employee does not attend work without excuse or approval, does not mean you can assume they have abandoned their employment.
🧑‍⚖️
In Bienias v Iplex Pipelines Australia Pty Ltd (2017), the Fair Work Commission (FWC) ruled that an employer “must take the positive step of concluding that it is not satisfied that the employee was absent for reasonable cause”.
If you know why an employee is absent from work, you cannot treat them as having abandoned their employment unless you warn them their employment is at risk if they don’t return to work on a regular basis.
📑
William does not return from annual leave on the date that was scheduled. When you make contact with him, he says he decided to extend his leave by a week. You advise him that this is not approved and he should return to work as soon as possible. He refuses and says he will return next week. This is not abandonment of employment. However, you might have a legal basis to discipline William for failing to follow a lawful and reasonable direction to return to work.

Step-by-Step: What to do if an employee is absent without explanation

There are four steps you should take if an employee fails to attend work without providing a reason.

If an employee fails to attend work without providing a reason, you should take the following steps:

Step 1: Check the terms of any industrial instruments and workplace policies that may apply to the employee’s employment

While the FW Act does not provide any guidance for employers in circumstances where their employees fail to attend work without notifying their employer, enterprise agreements may include terms to be followed in the event of an employee’s abandonment of employment.

🖋️
It is advisable that workplace policies include the expectation around notifying the employer within a reasonable timeframe in the event of absence and the processes that manage abandonment of employment situations. Employers may insert abandonment of employment terms into their employee agreements, e.g. the contract may include terms similar to “where the employee does not attend the workplace for 3 consecutive days without notifying the employer, this will be grounds for termination”.

If there are provisions for abandonment of employment in an applicable industrial instrument, contract or policy, you must follow them.

If there are no provisions for abandonment of employment, continue onto step 2.

Step 2: Attempt to make contact with the employee

The employee’s manager or supervisor should ascertain whether the employee has made any contact with other employees, supervisors or managers.

If the employee has not made contact to provide an explanation for their absence, the manager or supervisor should attempt to contact the employee.

If contact is made, the manager or supervisor should request further details about the absence, including:

  • why the employee has been absent;
  • what the expected duration of the absence will be; and
  • an explanation for the failure to notify you of their absence.

The manager or supervisor should consider whether counselling is appropriate for failure to notify.

Where the employee is not able to be contacted, a detailed filenote should be kept on what was done to contact the employee.

This note will be useful in the event of further action.

🖋️
Consider contacting the employee’s next of kin or emergency contact where appropriate.

Step 3: Write to the employee

Where the employee fails to attend work for a second consecutive day, without notification, the manager or supervisor should prepare a letter to be sent to the employee.

The letter should:

  • set out the absence notification requirements; and
  • the potential outcomes for the employee if they do not contact their manager or supervisor immediately.

Click here for a template letter to send to an employee when they are absent without explanation.

If the employee responds to the letter on that day, the manager or supervisor should ascertain the details set out in step 2.

Counselling on the employee’s return may also be considered.

Step 4: Consider employment termination

Where the employee is absent from work on a third consecutive day without notification, the employer may determine to terminate the employee’s employment. A letter must be sent to the employee. This letter will terminate the employment as a result of abandonment.

🔑
You must act with caution. Keep in mind that failure to notify the employer of an absence may be completely out of control of the employee. For example, if they are unconscious in hospital.

Notice and final pay requirements for abandonment of employment

Lower your legal risk by terminating employment with notice.

You must provide the employee notice of employment termination unless the employee is dismissed for serious misconduct.

🔎
Serious misconduct is misconduct by an employee of such a nature that it would be unreasonable to require the employer to continue employing the employee. Serious misconduct includes theft, fraud, violence, and serious breaches of health and safety procedures.

In cases of serious misconduct, you can dismiss an employee summarily, i.e. without notice.

Employment termination on the basis of abandonment of employment could be characterised as dismissal on the grounds of serious misconduct where the employee has refused to comply with an instruction to return to work. However, this should be assessed on a case-by-case basis.

Where the abandonment is not clearly serious misconduct, the option with less legal exposure would be to terminate the employment with notice.

The employee’s final pay must be in accordance with the National Employment Standards, applicable modern award, enterprise agreement or contract of employment. Where the employer cannot pay the employee because their whereabouts is unknown, section 559 of the Fair Work Act 2009 (Cth) provides that the employer can pay the amount to the Commonwealth instead. The employee is then able to make a claim for payment from the Fair Work Ombudsman at a later date.What is abandonment of employment?

An employee is deemed to have abandoned their employment when three conditions are met.

🔎
Abandonment of employment refers to a situation in which an employee fails to attend work for no reason known to the employer, and it is reasonable to conclude that they no longer wish to work for the business.

An employee abandons their employment when they:

  • cease to attend their place of employment;
  • without proper excuse or explanation; and
  • as a result, show an unwillingness or inability to substantially perform their obligations under the employment contract.
📑
Mary works for IBGH Inc. on a full-time basis. Employees of IBGH are required to notify their manager as soon as reasonably practicable if they cannot attend work, and give a reason for the absence. Mary is absent for a week without contacting her manager. Her manager makes several attempts to locate Mary and communicate with her, with no success.

If an employee acts in a way that would cause you to reasonably assume they are abandoning their employment, you can treat the employment as having come to an immediate end.

🔑
If an employee acts in a way that would cause you to reasonably assume they are abandoning their employment, you can treat the employment as having come to an immediate end.

Is abandonment of employment a dismissal?

Treating an employee as having abandoned their employment is not dismissal.

🔑
Where an employee has abandoned their employment, they are entitled to bring an unfair dismissal application under the Fair Work Act 2009 (Cth) (FW Act) because they have been dismissed.
🔎
Unfair dismissal occurs when an employee is dismissed harshly, unjustly or unreasonably.
🖋️
Taking detailed notes of your attempts to contact the employee will assist in showing that you have taken reasonable steps to ascertain whether an employee has abandoned their employment. By taking these proactive steps, as well as exercising the usual procedural fairness, you will limit your legal exposure by being in a strong position to defend an unfair dismissal claim.

When is an unexplained absence not an abandonment of employment?

An employee’s absence from the workplace will not always be an abandonment of employment.

Abandonment requires circumstances that would cause a reasonable employer to believe the employee has walked away from their employment and does not want to return. It doesn’t apply where there is a frustration of the employment contract.

🔎
Frustration is where a contract comes to an end because of an event that is not the fault of either party.

Examples of frustration of the employment contract are where the employee does not show up for work because they are imprisoned or they are deceased.

Just because an employee does not attend work without excuse or approval, does not mean you can assume they have abandoned their employment.

Just because an employee does not attend work without excuse or approval, does not mean you can assume they have abandoned their employment.
🧑‍⚖️
In Bienias v Iplex Pipelines Australia Pty Ltd (2017), the Fair Work Commission (FWC) ruled that an employer “must take the positive step of concluding that it is not satisfied that the employee was absent for reasonable cause”.
If you know why an employee is absent from work, you cannot treat them as having abandoned their employment unless you warn them their employment is at risk if they don’t return to work on a regular basis.
📑
William does not return from annual leave on the date that was scheduled. When you make contact with him, he says he decided to extend his leave by a week. You advise him that this is not approved and he should return to work as soon as possible. He refuses and says he will return next week. This is not abandonment of employment. However, you might have a legal basis to discipline William for failing to follow a lawful and reasonable direction to return to work.

Step-by-Step: What to do if an employee is absent without explanation

There are four steps you should take if an employee fails to attend work without providing a reason.

If an employee fails to attend work without providing a reason, you should take the following steps:

Step 1: Check the terms of any industrial instruments and workplace policies that may apply to the employee’s employment

While the FW Act does not provide any guidance for employers in circumstances where their employees fail to attend work without notifying their employer, enterprise agreements may include terms to be followed in the event of an employee’s abandonment of employment.

🖋️
It is advisable that workplace policies include the expectation around notifying the employer within a reasonable timeframe in the event of absence and the processes that manage abandonment of employment situations. Employers may insert abandonment of employment terms into their employee agreements, e.g. the contract may include terms similar to “where the employee does not attend the workplace for 3 consecutive days without notifying the employer, this will be grounds for termination”.

If there are provisions for abandonment of employment in an applicable industrial instrument, contract or policy, you must follow them.

If there are no provisions for abandonment of employment, continue onto step 2.

Step 2: Attempt to make contact with the employee

The employee’s manager or supervisor should ascertain whether the employee has made any contact with other employees, supervisors or managers.

If the employee has not made contact to provide an explanation for their absence, the manager or supervisor should attempt to contact the employee.

If contact is made, the manager or supervisor should request further details about the absence, including:

  • why the employee has been absent;
  • what the expected duration of the absence will be; and
  • an explanation for the failure to notify you of their absence.

The manager or supervisor should consider whether counselling is appropriate for failure to notify.

Where the employee is not able to be contacted, a detailed filenote should be kept on what was done to contact the employee.

This note will be useful in the event of further action.

🖋️
Consider contacting the employee’s next of kin or emergency contact where appropriate.

Step 3: Write to the employee

Where the employee fails to attend work for a second consecutive day, without notification, the manager or supervisor should prepare a letter to be sent to the employee.

The letter should:

  • set out the absence notification requirements; and
  • the potential outcomes for the employee if they do not contact their manager or supervisor immediately.

Click here for a template letter to send to an employee when they are absent without explanation.

If the employee responds to the letter on that day, the manager or supervisor should ascertain the details set out in step 2.

Counselling on the employee’s return may also be considered.

Step 4: Consider employment termination

Where the employee is absent from work on a third consecutive day without notification, the employer may determine to terminate the employee’s employment. A letter must be sent to the employee. This letter will terminate the employment as a result of abandonment.

🔑
You must act with caution. Keep in mind that failure to notify the employer of an absence may be completely out of control of the employee. For example, if they are unconscious in hospital.

Notice and final pay requirements for abandonment of employment

Lower your legal risk by terminating employment with notice.

You must provide the employee notice of employment termination unless the employee is dismissed for serious misconduct.

🔎
Serious misconduct is misconduct by an employee of such a nature that it would be unreasonable to require the employer to continue employing the employee. Serious misconduct includes theft, fraud, violence, and serious breaches of health and safety procedures.

In cases of serious misconduct, you can dismiss an employee summarily, i.e. without notice.

Employment termination on the basis of abandonment of employment could be characterised as dismissal on the grounds of serious misconduct where the employee has refused to comply with an instruction to return to work. However, this should be assessed on a case-by-case basis.

Where the abandonment is not clearly serious misconduct, the option with less legal exposure would be to terminate the employment with notice.

The employee’s final pay must be in accordance with the National Employment Standards, applicable modern award, enterprise agreement or contract of employment. Where the employer cannot pay the employee because their whereabouts is unknown, section 559 of the Fair Work Act 2009 (Cth) provides that the employer can pay the amount to the Commonwealth instead. The employee is then able to make a claim for payment from the Fair Work Ombudsman at a later date.