There is often a misconception that simply because an employee
is absent from work without authorisation or approval or supplying
a reason, the employer can dismiss on grounds the employee has
'abandoned' their employment. In fact, this can rarely be
done without the employer first making genuine attempts to contact
the absent employee and understand the reasons for any absences.
Once the employer has notice or information on why an employee has
been absent from work, it will be difficult for an employer to
The misconception is actually reinforced in several modern
awards that contain 'abandonment of employment' clauses.
These deem an employee covered by that award to have abandoned
their employment where the employee has been absent from work for a
certain period without consent from their employer, and without
notification of the reason for the absence.
Employers relying on these clauses are vulnerable to have the
resulting dismissal challenged. This was the case in Bienias v
Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines
Australia  FWCFB 38. In that case, the Full Bench of the
Fair Work Commission determined the abandonment clause in the
Manufacturing and Associated Industries Occupations Award did not
operate as an automatic dismissal provision in specified
The Full Bench said that, before an employer can rely on an
abandonment clause in an award, 'the employer must take the
positive step of concluding that it is not satisfied that the
employee was absent for reasonable cause before the deeming
The Full Bench further considered that if the abandonment clause
in the Award was treated as effecting an automatic termination of
employment, it is not a term that is either permitted or required
in a modern award pursuant to s 137 of the Fair Work Act
2009 (Cth) and is therefore of no effect.
Following the Full Bench's decision in Iplex, FWC
President Ian Ross has called for a review into abandonment clauses
in modern awards.
When will an employee have abandoned their employment?
Abandonment of employment refers to a situation in which an
employee fails to attend work for no reason known to their employer
and it is reasonable to conclude that they no longer wish to work
for their employer.
The difficulties of establishing that an employee has abandoned
their employment is well demonstrated by the case of J Searle v
Moly Mines Limited  AIRCFB 1088. In this case an
employer made several attempts to contact an employee, both
directly and through her solicitors, over a number of months. The
employee was warned on several occasions that her employment would
be considered to have been abandoned if she didn't return to
work. The employee failed to substantively respond to her employer
and, through her representative, proceeded to provide the employee
with a series of medical certificates and workers compensation
Following the expiry of the employee's last medical
certificate, the employer terminated the employment citing
abandonment. Following termination the employer received a current
medical certificate covering the employee's absences. At the
unfair dismissal hearing in this matter, the Australian Industrial
Relations Commission determined that the fact that the employee had
made a workers compensation claim, and that the claim may have been
accepted, put the employer on notice as to the reason for the
employee's absence, and should have put them on inquiry as to
whether there was continuing medical certificates to cover the
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