Employment Law Folklore No. 1

From time to time an employer has an employee who fails to attend work for one or more days, with no communication or reason given. No leave has been granted. In this situation, my employer client will often ask "Can't I just sack him/her for abandonment of employment?".

The short answer is usually "No". The idea that an unexplained absence may in itself be a basis for immediate termination may stem from Awards, which in the past have provided for abandonment of employment to result in termination after some specified period such as 3 or 5 days. However, these provisions did not appear in all Awards, and as part of the 4-yearly review of the modern Awards, have been deleted from Awards, so there is no express legal rule which allows abandonment to be a short and simple basis for termination.

Failure to attend work may, of course, amount to serious misconduct in that an unexplained absence (especially if prolonged) may be repudiatory conduct, an indication that the employee no longer regards themselves as bound by the employment contract. But the responsibility to prove serious misconduct lies on an employer, and to be sure that you can prove that, you would need to have more than the mere fact of an unexplained absence. There may be a number of explanations, unknown to the employer.

The Fair Work Commission has noted on a number of occasions that "an employer will normally be expected to have attempted to contact the employee to ask why they have been absent" (4 yearly review of Modern Awards [2018] FWCFB139). In Thompson v Atlas Steel [2019] FWC 1687, an employer used an unexplained absence to terminate employment - but if it had made enquiries, it would have found that Mr Thompson had sent a medical certificate and had made a workers compensation claim (which the employer seemed not to have received), which explained the absence. The lack of enquiry made the employer's position unreasonable, and resulted in a successful unfair dismissal claim.

Of course, the longer an unexplained absence is, the stronger the grounds are for termination, but it will be a rare situation in which at least making an enquiry as to what was going on would not be required.

How that enquiry should be framed will depend on the circumstances. An absence completely without any explanatory context may merit an open-ended enquiry to elicit information, and only when that has been ignored, or when the information provided gives a basis to propose disciplinary action or termination, should that further step be taken. On the other hand, if an employee has, for example, requested leave, and the request was refused, and the employee then fails to attend work for the very period for which they sought the leave, the fact that it appears that the employee has taken the time off regardless of the refusal of leave, is obviously a point to raise, along with the fact that it might have serious disciplinary consequences.

Employers should not assume that an absence is an opportunity for a "free kick" in terms of dismissal. The way the employer deals with the absence still needs to meet the requirements of the unfair dismissal rules (a substantive valid reason for termination, and a fair process which, the outcome of which is not unduly harsh, unjust or unreasonable) and in terms of adverse action, the employer still needs to be able to show that the reasons for termination were rational and not in any way discriminatory, or victimising the employee for exercise of workplace rights.

Plainly enough, failing to attend employment may be a reason to terminate employment but it is not an exception to the general rules about termination or adverse action.

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.