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
In the case of J Searle v Moly Mines Limited 
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.
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
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
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
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
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 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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3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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