Australia: Abandonment of employment and how to deal with it

Know your rights and obligations as an employer to avoid putting your business at risk.

In Brief: When an employee abandons their employment, you need to be clear about your rights and obligations as an employer, to avoid putting your business at risk.

Being absent from work without authorisation or approval, or without supplying a reason, does not alone entitle an employer to dismiss the employee for having "abandoned" their employment. Genuine attempts to understand the reason/s for the employee's non-attendance should be made before any actions for dismissal are considered.

What you need to know:

  • Abandonment of employment is a situation where:
    • an employee does not attend work; and
    • does not provide to their employer a reason for not attending work; and
    • it is reasonable for an employer to conclude that the employee does not want to work for the employer any more.
  • An employer should not dismiss an employee for abandonment of employment without first having made genuine and reasonable (dictated by common sense) attempts to understand the reason/s for the employee's non- attendance.
  • If you do dismiss an employee without making such attempts, you will likely be faced with a claim which may be difficult for you to defend.

Key points to consider with abandonment of employment

An employee being absent from work without an employer's authorisation or approval or without supplying a reason, does not alone entitle an employer to dismiss an employee for having 'abandoned' their employment.

Even where an Award would seem to condone dismissing an employee for abandonment of employment, employers will be putting their businesses at risk if they dismiss an employee for abandonment of employment without first having made genuine attempts to understand the reason/s for the employee's non- attendance.

And some Awards do condone it. For instance, the Manufacturing and Associated Industries Occupations Award 2010 provides as follows regarding abandonment of employment:

21. Abandonment of employment

21.1 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 prima facie evidence that the employee has abandoned their employment.
21.2 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 an 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.
21.3 Termination of employment by abandonment in accordance with clause 21—Abandonment of employment 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 later.

What that infers is that provided that the specified circumstances have occurred or are met, an employee can automatically be dismissed for abandonment. This is in fact not correct.

Case on point

In Bienias v Iplex Pipelines Australia Pty Ltd t/as Iplex Pipelines Australia, a 2017 case determined by the Full Bench of the Fair Work Commission, it was found that clause 21 of the Manufacturing and Associated Industries Occupations Award (extracted above) does not operate as an automatic dismissal provision and that before an employer can rely on the clause, the employer "must take the positive step of concluding that it is not satisfied that the employee was absent for reasonable cause before the [clause 21] operates".

This means that employers must, before proceeding to dismiss an employee for abandonment, first make genuine attempts to find out the reason why the employee isn't at work. The most obvious and common way of doing this would be to seek to contact the employee, but the obligation will not end there and employers should exercise a common sense approach to trying to determine the reason for the employee not being at work. To illustrate, in a 2008 case1 the Australian Industrial Relations Commission found that before dismissing an employee (who was absent for medical reasons) for abandonment after the medical certificates which she had provided to the employer had expired, the employer ought to have:

  • considered the fact that the employee had made a workers compensation claim which may have been accepted; and
  • gone further than to simply try and contact the employee, by taking steps to check whether there was a new medical certificate for the otherwise unexplained period of absence (which, as it happened, there was – but the employer didn't know this because they'd not checked...).

Conclusion

The 'take home message' for employers in relation to abandonment of employment is that you should not dismiss an employee for abandonment of employment without first having made genuine and reasonable (dictated by common sense) attempts to understand the reason/s for the employee's non-attendance – and that if you do dismiss an employee without making such attempts, you will likely be faced with a claim which may be difficult for you to defend.

Footnote

1J Searle v Moly Mines Limited [AIRCFB 1088] (2008)

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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