When an employee abandons their employment, you need to be clear about your rights and obligations as an employer, to avoid putting your business at risk.
Being absent from work without authorisation or approval, or without supplying a reason, does not alone entitle an employer to dismiss the employee for having “abandoned” their employment. Genuine attempts to understand the reason/s for the employee’s non-attendance should be made before any actions for dismissal are considered.
What you need to know
- Abandonment of employment is a situation where:
- an employee does not attend work; and
- does not provide to their employer a reason for not attending work; and
- it is reasonable for an employer to conclude that the employee does not want to work for the employer any more.
- An employer should not dismiss an employee for abandonment of employment without first having made genuine and reasonable (dictated by common sense) attempts to understand the reason/s for the employee’s non-attendance.
- If an employer does dismiss an employee without making such attempts, you will likely be faced with a claim which may be difficult to defend.
Key points to consider with abandonment of employment
An employee being absent from work without an employer’s authorisation or approval or without supplying a reason, does not alone entitle an employer to dismiss an employee for having ‘abandoned’ their employment.
Even where an Award would seem to condone dismissing an employee for abandonment of employment, employers will be putting their businesses at risk if they dismiss an employee for abandonment of employment without first having made genuine attempts to understand the reason/s for the employee’s non-attendance.
In Bienias v Iplex Pipelines Australia Pty Ltd t/as Iplex Pipelines Australia, a 2017 case determined by the Full Bench of the Fair Work Commission, it was found that clause 21 of the Manufacturing and Associated Industries Occupations Award (as to abandonment of employment) does not operate as an automatic dismissal provision and that before an employer can rely on the clause, the employer “must take the positive step of concluding that it is not satisfied that the employee was absent for reasonable cause before the [clause 21] operates“.
This means that employers must, before proceeding to dismiss an employee for abandonment, first make genuine attempts to find out the reason why the employee isn’t at work. The most obvious and common way of doing this would be to seek to contact the employee, but the obligation will not end there and employers should exercise a common sense approach to trying to determine the reason for the employee not being at work. To illustrate, in a 2008 case1 the Australian Industrial Relations Commission found that before dismissing an employee (who was absent for medical reasons) for abandonment after the medical certificates which she had provided to the employer had expired, the employer ought to have:
- considered the fact that the employee had made a workers compensation claim which may have been accepted; and
- gone further than to simply try and contact the employee, by taking steps to check whether there was a new medical certificate for the otherwise unexplained period of absence (which, as it happened, there was – but the employer didn’t know this because they’d not checked…).
The ‘take home message’ for employers in relation to abandonment of employment is an employee should not be dismissed for abandonment of employment without the employer first having made genuine and reasonable (dictated by common sense) attempts to understand the reason/s for the employee’s non-attendance – and that if an employee is dismissed without the employer having made such attempts, a claim will likely be made against the employer which may be difficult for the employer to defend.
For advice or assistance in understanding your obligations or risk, please contact the team here at Emplawyer.
1 J Searle v Moly Mines Limited [AIRCFB 1088] (2008)
