Whether or not an employee has actually abandoned their
employment can be a tricky matter to determine, and each case needs
to be determined on its own particular set of circumstances. Here
are a few things to bear in mind when making the call in your
To be able to claim that an employee has abandoned their
employment there must be a clear act by the employee that indicates
an intention by him/her to no longer be bound by the terms of the
employment contract. Such an act would typically include the
employee not turning up for work over an extended period without
Is there a definition of "extended period"?
Some modern awards including the Nursery Award, Manufacturing
and Associated Industries and Occupations Award, Graphic Arts,
Printing and Publishing Award, Contract Call Centres Award and the
Business Equipment Award, contain an abandonment clause that states
The absence of an employee from work for a continuous period
exceeding three working days without the consent of the employer
and without notification to the employer is evidence that the
employee has abandoned their employment.
If within a period of 14 days from their last attendance at
work or the date of their last absence in respect of which
notification has been given or consent has been granted and
employee has not established to the satisfaction of their employer
that they were absent for reasonable cause, the employee is deemed
to have abandoned their employment.
Termination of employment by abandonment in accordance with
this clause operates as from the date of the last attendance at
work or the last day's absence in respect of which consent was
granted, or the date of the last absence in respect of which
notification was given to the employer, whichever is the
For those who employ staff covered by modern awards that
don't define "abandonment," and/or, for those that
employ staff who are award free – you have to rely on a body
of case law to guide your actions.
The general guiding principles that come out of those cases
the employee needs to have been absent for an extended period
(14 days or more is a good rule of thumb given the award
the absence needs to be unexplained; and,
not attending on one or more days does not constitute
abandonment – but would likely qualify as an unauthorised
absence and therefore a basis for disciplinary action (and
depending on the circumstances, possibly grounds for
If faced with this situation – follow these steps:
Check if the relevant employee is covered by a modern award and
if they are, whether or not the award has an abandonment
Initially, attempt to contact the employee by phone and make a
note of all such attempts (dates and times).
After 14 days – write to the employee (post and email)
requesting an explanation for their absence by a specified date,
and put him/her on notice that should no response be received (or
should they not provide a reasonable explanation for their
absence/failure to communicate with you), you will have no choice
but to determine that they have abandoned their employment and
Write again to the employee and confirm that in light of their
conduct you have no choice but to conclude that he/she has
abandoned his/her employment, and confirm the termination date and
any outstanding payments.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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