Australia: Automatic abandonment of employment award clauses – to be abandoned?

A recent Decision of a Full Bench of the Fair Work Commission has drawn attention to the complexities that often arise when an employer believes that an employee has "abandoned" their employment. It is also ironic that the Decision relates to a provision in a modern award that was inserted for the purpose of trying to make the determination of the "abandonment of employment" issue easier for employers in particular cases.

When an employee fails to attend for work for a significant period of time without the employer's permission or a valid prior explanation, the question will often arise as to whether the employee has "abandoned" the employment. There is never an easy answer to the question – the answer always depend on the facts and circumstances of each particular case.

One of the major modern awards, the Manufacturing and Associated Industries Occupations Award 2010 tries to simplify the situation by prescribing in Clause 21 what appear to be rules as to when unauthorised and unexplained absence by an employee can be treated by the employer as "abandonment of employment". Five other modern awards have similar, although not identical provisions.

In Bienias –v- Iplex Pipelines Australia Pty Limited [2017] FWCFB 38 a Full Bench of the Fair Work Commission had to consider what Clause 21 of the Manufacturing and Associated Industries Occupations Award 2010 meant in circumstances where a very long serving employee of the Company concerned had failed to attend for work for a period of over 2 weeks after being given a letter with a final warning and placing him on a Performance Improvement Plan. After initiating various enquiries and attempts at contacting Mr Bienias the Company delivered to him a letter on 30 May 2016 contending that his lack of contact with the Company meant that he had abandoned his employment and that his employment was therefore terminated with effect on 13 May 2016, being the last shift he worked for the Company.

Mr Bienias brought an unfair dismissal claim and in response the Company claimed that by reason of the provisions of Clause 21 of the Manufacturing and Associated Industries Occupations Award 2010 Mr Bienias was deemed to have abandoned his employment 14 days after his last date of attendance at work and that as a consequence the employment had not come to an end "at the initiative of the employer".

It is important for the understanding of the Full Bench's Decision to be aware of the full provisions of Clause 21 of the Award and they are relevantly as follows:-

"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."

The Full Bench took the view that this Clause did not have the automatic effect of bringing the employment relationship to an end when its conditions were satisfied. Subclause 1 only created a "prima facie" position, so could not operate as a termination of the employment itself, and subclause 2 depended upon the employer's discretion and so it too did not automatically operate to terminate the employment.

The Full Bench also noted that the Company had conducted itself upon the basis that it was actually terminating the employee's employment when it wrote to him by letter dated 30 May 2016.

The effect of the Decision therefore was that the Clause did not operate to automatically terminate an employee's employment in a situation which might be regarded by the employer as "abandonment of employment" – it was up to the employer to take the positive step of deciding to terminate the employment in consequence of the provisions of the Clause, and it was entitled not to do if that was its view. The consequence of that reasoning of course was that when the employer acted on the provisions of the Clause it was terminating the employment at the employer's initiative (thus giving the employee the right to bring an unfair dismissal claim).

Of particular interest in connection with this Decision is that as a result of it the Commission has decided that Clause 21 of this Award, and equivalent provisions in five other modern awards, should be reviewed as part of the modern award review process. That initiative was taken because in its Decision the Full Bench observed that if Clause 21 operated to automatically bring the employment relationship to an end then it was not a permissible provision to have in a modern award because it was inconsistent with the provisions in the Fair Work Act 2009 (Cth), namely Section 117.

All of the above clearly demonstrates the point that was made at the start of this article – namely, abandonment of employment is never an easy issue and consideration has to be given to the particular facts and circumstances of every case.

In our experience the common factors that need to be looked at in each case of possible abandonment of employment are these, although the list is not exhaustive:

  • What is the length of unauthorised and unexplained absence?
  • What steps have been taken to contact the employee?
  • What specific warning has been given to the employee that a failure to get in contact and provide an explanation will result in termination of the employee's employment?
  • What were the immediate circumstances prior to the employee ceasing to attend without authorisation or explanation?
  • What was the employee's history of work attendance prior to the commencement of the unexplained attendance?

It is also clear that even if an award clause applicable to the relevant employee deals with abandonment of employment , the employer will still have to go through the exercise referred to above, and not simply rely on the Clause itself as a protection against a subsequent unfair dismissal claim.

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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