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 establish abandonment.
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 [2017] 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 circumstances.
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 provision operates'.
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 [2008] 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 related documents.
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 absence.
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