Abandonment of employment arises where for an unreasonable
period of time an employee is absent from work or fails to return
to work after a period of authorised leave without communicating or
providing the employer any valid reason for the absence.
Recent case law has clarified that, in circumstances where an
employee has abandoned their employment, the employer is required
to take an additional step in order to terminate the employment
Fair Work Act and Modern Awards
The Fair Work Act 2009 (FW Act) does
not explicitly deal with abandonment of employment, although a
handful of Modern Awards currently provide guidance to employers as
they contain provisions relating to the abandonment of
However in a recent decision of the full bench of the Fair Work
Commission (FWC) it was held that an employer
cannot rely solely on the Modern Award to terminate employment. It
was confirmed by the FWC that where an employee abandons their
employment, the employer must take an "additional step of
terminating the employment and if it does not do so employment
continues" (Boguslaw Bienias v Iplex Pipelines Australia
Pty Ltd  FWCFB 38,  (B v Iplex)).
That is, it is incumbent upon the employer to rely upon the
employee's repudiation or grounds for the employer to bring the
contract to an end.
It is also important to note that the Full Bench held, pursuant
to section 137 of the FW Act, if a term in a modern award renders
the automatic termination of employment when an employee abandons
his or her employment, "it is not a term that is either
permitted or required in a Modern Award" (B v Iplex, ). As
a result, on 1 February 2017, the FWC announced that it will review
abandonment of employment terms contained in all relevant Modern
It is evident that in order to terminate an employee on the
basis of abandonment of employment an employer is required to take
a positive step in order to end the employment relationship.
Therefore, "it is the act of the employer that brings about
the termination of the employee's employment" (Bienias
v Iplex, )
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An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
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