We've all had that sinking feeling at the end of a period of
annual leave: the realisation of the impending need to return to
work becomes all too apparent, and you think, "I might
just extend this holiday for 6 months to a year". Or,
maybe you are a new mum or dad, nearing the end of parental leave,
and you consider staying in that new-born bubble for so long as it
lasts. Maybe you've just woken up one morning and decided to
not show up for work that day (or the next day, or the next). What
also accompanies these thoughts is that you would simply return to
work when you feel like it because, of course, your job is always
going to be held open for you; you wouldn't need to tell the
boss what you're doing, and you certainly wouldn't need to
return their pesky calls asking of your whereabouts.
These scenarios are commonly known as "abandonment of
employment", and they happen frequently (see Mad Men's Don
Draper as an apt example). Employers often think that they can
dismiss an employee simply because the employee has failed to
attend work for no reason known to the employer. Practically,
however, it may be difficult to establish that an employee has
actually abandoned their employment. This is because an
extra step is required: the employer must firstly make genuine
attempts to contact the absent employee and understand the reasons
for the absence. Once the employer is apprised of the information
about the employee's absence, it will be difficult for the
employer to establish abandonment. They'll need to think
carefully about termination due to risks of exposure to unfair
dismissal and general protections claims.
The Fair Work Act 2009 does not expressly deal with
abandonment of employment. Some modern awards do; however, they
effectively operate as automatic dismissal provisions and reinforce
the notion that an employee (covered by the award) who has been
absent for an extended period—either without consent from
their employer or they fail to return after a period of authorised
leave—and without notification of a reason for the absence,
has therefore abandoned their employment. The clauses do not
provide for the extra step, as identified in recent case law.
In Boguslaw Bienias v Iplex Pipelines Australia Pty Ltd t/a
Iplex Pipelines Australia  FWCFB 38 (Iplex
Pipelines), a team leader failed to show up to work
for a fortnight, following a series of unauthorised absences from
various shifts. During his absence, Iplex attempted to contact the
employee by phone, in writing, and even arranged for the police to
conduct a welfare check on him. The employee did not respond to any
of Iplex's attempts at contact. The company set these facts out
in a letter to the employee and, when he did not respond,
determined that he had abandoned his employment. So they terminated
him on that basis.
The Full Bench of the Fair Work Commission
(FWC) in Iplex Pipelines determined that the
abandonment clause in the applicable award did not operate as an
automatic dismissal provision. Rather, the employer must take the
"positive step of concluding that it is not satisfied that
the employee was absent for reasonable cause",
before it can rely on an abandonment clause in an
The Full Bench also found that if this clause was treated as
effecting an automatic termination of employment, then it is not a
term permitted or required in a modern award pursuant to s.137 of
the Fair Work Act, and is therefore of no effect. As a
result of this decision, the FWC announced that it will review
abandonment clauses in all modern awards.
So, if you're an employer dealing with your own Don Draper,
you'll need to take the extra step of satisfying yourself that
the employee was not absent for reasonable cause, before
the deeming provision in an award can operate, and before ending
the employment relationship.
AWOL employees should not get complacent: although it's the
employer that must act positively, employees will need to satisfy
the employer that they are absent for a reasonable cause, otherwise
they risk their employment being terminated.
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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