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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Pointon Partners
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Pointon Partners
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions