by Michael Stafford
Sep 20, 2019
Dismissals, HRM

The Employer’s Guide to Abandonment

It’s lunchtime on Monday and most of your employees are hard at work. However, there is one employee who hasn’t turned up to work since Friday (and hasn’t given you a reason for their absence). What do you do?

Unexplained absences by employees are often some of the most difficult situations for employers to manage, raising multiple questions for the employer to address:

  • Has something happened to the employee, and are they okay?
  • Has the employee had enough and decided to quit?
  • Has the employee abandoned their employment?
  • Does the business need to replace the employee?
  • Can the employee be dismissed?

Abandonment of employment arises where an employee fails to attend work without providing their employer with an appropriate reason for their absence. Ultimately, there is no ‘one size fits all’ response for employers when this occurs.

The recent case of Orry Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687 at 49 (“Thompson Case”), confirmed the test for abandonment as:

“whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it.”

Commissioner Gregory, at [47]

Ultimately, being absent from work without approval, or without supplying a reason, does not automatically entitle an employer to dismiss the employee for having “abandoned” their employment.  Before you deem an employee has abandoned their employment (and subsequently dismiss them), genuine attempts must be made to contact the employee to identify the reason(s) for their ‘no show’.

When seeking to dismiss an employee for abandoning their employment, employers should consider undertaking the following steps to minimise the risks of a dismissal-related claim.

Step 1 – Give the employee a call

The most obvious and common-sense way of ‘checking in’ with an employee is to give them a call.

The Thompson Case highlights the importance of this simple first step, as the Fair Work Commission (“FWC”)  found that Thompson was unfairly dismissed by his employer because they did not take the simple step of ‘reaching out’.

If the employee answers, then you can discuss the reasons for their absence and obtain some indication of when they are likely to return to work. However, if the call goes through to their voicemail, you should leave a message to:

  • enquire whether they are okay;
  • ask for an explanation for their absence; and
  • advise them any failure to respond (in a specified timeframe) may result in the company determining they have abandoned their employment.

Despite the above, should the employee fail to reply, or you are unable to leave a voice message, you should make additional efforts to contact the employee.

Step 2 – Call the employee’s next of kin

If you cannot contact the employee directly, try to contact a relative or the employee’s next of kin. This is often considered a reasonable step which employers should take because the employee may have been in an accident and may not be able to contact you themselves, due to circumstances beyond their control (i.e. a car accident which results in the employee’s hospitalisation).

Step 3 – Follow up via email, social media or through work colleagues

Should the employee remain uncontactable, the next step would be to attempt other methods of communication which are reasonably available. Often, this might involve sending an email or another message to the employee, enquiring whether they are okay, asking for an explanation for their absence. This message would again advise the employee the company will consider their employment abandoned if they fail to respond while also outlining the disciplinary actions which may follow.  

Step 4 – Follow up letter

If you are still unable to contact the employee, you should send a letter (to their registered address), advising you have sought to contact them via other mediums and notifying them that they will be deemed to have abandoned their employment if they fail to respond by a specified time. This letter should also advise the employee of the disciplinary actions that may follow (including dismissal) should they continue to remain unresponsive and fail to attend work.

Should the employee fail to respond in the timeframe specified, you can likely proceed with finalising the employee’s termination (i.e. paying out their accrued leave entitlements) knowing you have taken reasonable steps to contact the employee. Ultimately, following these steps will mitigate the risks associated with dismissing an employee because of their abandonment.

What if the employee responds but in an unsatisfactory manner?

If the employee responds to your queries but fails to provide an appropriate or satisfactory reason for their ‘no-show’, the matter is a disciplinary issue which should be managed pursuant to any relevant policies and/or enterprise agreement.

How long should you wait before declaring an employee has abandoned their employment?

As mentioned above, there is no ‘one size fits all’ answer to this question. Ultimately, it depends on what is reasonable given all the circumstances. 

Should an abandonment dismissal ever proceed to the FWC, all the circumstances of the matter (including both the employee’s and employer’s acts) will be considered when determining whether the dismissal was harsh, unjust or unreasonable.

Therefore, it is imperative that employers offer a significant degree of procedural fairness, and take all reasonable steps to contact the employee to be satisfied that the employee has abandoned their employment. Accordingly, an employer should focus more on the proactive steps it has taken to contact the employee (while still giving the employee a reasonable time to respond) rather than the time which has elapsed since the employee first failed to attend work.

What do the Wizards say?

Abandonment of employment is a complicated and often difficult area for employers to navigate. Ultimately, employers should be careful when considering whether to dismiss an employee on this basis.

The key message we have for employers is to make reasonable attempts to contact the employee (across several mediums if required) to ensure it is clear the employee no longer intends to be bound by the employment contract. Failure of the employer to make attempts to understand the reasons for an employee’s absence, will likely leave the employer with little defence to a dismissal related claim, should one be made.

Should you be unsure of your obligations or require assistance with an abandonment issue, please contact Michael Stafford on 0488 649 998 or email michael@workplacewizards.com.au for a free, no-obligation chat. 

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Michael Stafford

Consultant

Michael is highly client-focused and is dedicated to exceeding his client’s expectations and achieving positive results for them. Michael does this through providing efficient, pragmatic and cost-effective assistance to workplace problems.

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