A recent case has once again demonstrated the difficulty of successfully demonstrating that an employee has abandoned his or her employment. It has also emphasised the risks in attempting to do so.

In the case of J Searle v Moly Mines Limited [2008] AIRCFB 1088 the employee:

  • failed to answer phone calls from her employer;
  • did not respond to written communication;
  • returned letters unopened; and
  • repeatedly failed to contact her employer.

Facts

Her employer had frequently tried to contact her, both directly and through her solicitors, over a number of months. She had also been warned that she would be considered to have abandoned her employment if she didn't return to work.

The employee had made a number of allegations about a co-worker. She was suspended while the employer investigated the allegations, which were found to be unsubstantiated. Neither worker agreed to the employer's suggestion that they both leave on a negotiated basis.

The employer then proposed, via telephone and letter, that the employees return to work on the basis that they did not work with, or near, each other. The employee failed to respond to this suggestion. She, through her representative, then proceeded to provide the employer with a series of medical certificates and workers' compensation related documents.

Eight days after the last medical certificate it had received expired, the employer wrote to the employee. The letter referred to previous warnings that the employer would consider she had abandoned her employment if she failed to communicate with the employer. The letter also referred to express terms in her contract regarding abandonment of employment. Those terms stated that a failure to report to work or report to the employer for three consecutive days constituted abandonment of employment. Finally, the letter stated that the employee's actions constituted an abandonment and repudiation of the contract of employment, and that the employer accepted that repudiation.

Later on the day of the letter being sent the employer received an updated medical certificate from the employee's medical centre.

Findings

The Commission found the relevant question was whether the employment had been abandoned, or whether it had been terminated at the initiative of the employer. The test for this was whether the employer had taken some action that was intended to or had the probable result of bringing the employment to an end. This requires an objective analysis of the employer's conduct.

The Commission found that the termination was at the initiative of the employer as:

  • had the letter not been sent the employment would not have terminated at that time; and
  • as the employee was a workers' compensation claimant the employer should have been on notice to inquire whether there were continuing medical certificates to cover the absence.

The Commission then considered the express terms of the contract regarding abandonment of employment. It held that breach of those terms "would not necessarily result in termination of employment". This was because the contract provided that any breach could be waived. As the breach could be waived, the court found that it may have been, had the employer received the certificate a day earlier. On that basis the court held that the employment could not be said to have terminated after the three days.

The result of the Commission finding the employment was terminated at the employer's initiative, rather than by abandonment of employment, was that the employee was able to bring an unfair dismissal claim.

Implications for employers

  • Employers should be careful when assuming an employee has abandoned his or her employment.
  • To demonstrate abandonment of employment there must be very clear evidence that the employee has, by his or her actions ended the employment, rather than the employer.
  • Even when the employee has failed to attend work or communicate with the employer it can be difficult to demonstrate an abandonment of employment has taken place.
  • Employers should be particularly careful in situations involving personal/carer's leave, or a workers compensation claim.
  • Employers should also be wary of relying on an express term in an employment contract dealing with abandonment of employment. Even though the conditions of that term may be satisfied, a court or commission may still find the termination was at the initiative of the employer.

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.