HOW TO HANDLE AN

ABANDONMENT OF

EMPLOYMENT

Presented by:

Wesley Davey, Senior Employment Relations Adviser© June 2016

DISCLAIMER

The QHA has taken every available step to ensure the accuracy of

this presentation.

Whilst every effort has been made to ensure that the information

contained in this presentation is free from error and/or omissions,

no responsibility is accepted by the QHA, it’s employees or any

other person involved in the preparation of this presentation for any

claim which may arise from any person acting on information

contained herein.

The information in this presentation is provided as general advice

only. It does not constitute legal advice and it is always advisable to

seek further information regarding your own specific employment

relations issue.

SESSION CONTENT

What is an abandonment of employment?

Common abandonment situations

Process to follow to determine whether an employee has

abandoned their employment

Employee termination entitlements in abandonment situations

Risk of unfair dismissal

Case studies

WHAT IS ABANDONMENT OF

EMPLOYMENT? Abandonment arises in circumstances where an employee:

Is absent from the workplace without reasonable excuse;

For an unreasonable period of time; and

Has not communicated to the employer any reason for their

absence.

For an employee to have abandoned their employment, it must be

clear that the employee has demonstrated an intention to no longer

be bound by the terms of their contract of employment.

WHAT IS ABANDONMENT OF

EMPLOYMENT? Erbacher v Golden Cockerel Pty Ltd [2007] AIRC 491 - noted that

abandonment of employment is not quantified in time but requires

an analysis of what happened at the time and a consideration of

the intent of the employee.

Searle v Moly Mines Limited [2008] AIRCFB 1088 - noted that part

of the analysis of whether an employee has abandoned their

employment is looking at whether the employee has clearly

demonstrated an intention to no longer be bound by the terms of

the contract of employment.

WHAT IS ABANDONMENT OF

EMPLOYMENT? At common law, an abandonment of employment by an employee

constitutes a repudiation of the employment contract.

Repudiation occurs where the employee clearly indicates through

their actions an absence of readiness or willingness to perform

their contractual obligations.

With repudiation, the employment is not terminated until the

employer accepts the employee’s repudiation and terminates their

employment contract – therefore the termination is on the initiative

of the employer.

ABANDONMENT SITUATIONS Below are examples of where an employee may be regarded as

having abandoned their employment:

Employee walking out during a shift and not returning for the

remainder of that shift or any other rostered shifts;

Employee not returning from approved leave;

Employee not attending for work for a consecutive period

without communicating their absence to their employer;

Employee failing to keep in contact with their employer during a

period of absence or provide medical certificates to cover their

absence, despite being asked by their employer to do so.

PROCESS STEP 1

Make genuine attempts to contact the employee to ascertain the

reason for their absence from the workplace.

Methods of contact may include telephone, mobile phone, email or

fax.

Make file notes of all attempts to contact the employee, including

any message left and conversations had.

Keep file notes on the employee’s personnel file.

PROCESS STEP 2

Where the attempts to contact the employee in step 1 are

unsuccessful, the second step should be to send a letter to the

employee’s last known postal address via registered post or an

email with automatic sender notification activated.

In making contact with the employee, the employer should seek to

obtain the following information:

The reason for the absence;

If the absence is due to a medical condition, appropriate

evidence;

If the reason is not due to a medical condition, an explanation

of the absence from the employee and an indication of what

their intention is regarding their employment.

PROCESS STEP 3

Where the employee fails to respond to the letter/email sent in step 2, the

third step is to send another letter/email.

The correspondence should:

Set out all the attempts the employer has made to contact the

employee (including specific details such as dates, details of message

left, emails, SMSs, letters and any other contact methods); and

Notify the employee that if by a specific date (stipulated by the

employer), no contact is made by the employee or a valid reason for

their absence is not provided, the employer will deem that the

employee to have abandoned their employment; and

This amounts to a repudiation of the employment contract; and

The employer will accept the repudiation and terminate the

employment contract.

PROCESS STEP 4

If the employee fails to respond to the letter or email sent in step 3

or fails to provide a reasonable excuse for their absence, the next

step would be to send a final letter/email to the employee.

The correspondence should notify them that:

The employer has deemed that they have abandoned their

employment;

That this constitutes a repudiation of the employment contract;

and

That the employer has accepted the repudiation and decided to

terminate the employment contract.

TERMINATION ENTITLEMENTS

Outstanding Entitlements

Outstanding entitlements upon termination must be paid to the

employee.

If the employer is unable to pay outstanding entitlements to the

employee, section 559 of the Fair Work Act 2009 requires an

employer to pay the outstanding wages or entitlements to the Fair

Work Ombudsman (on behalf of the Commonwealth).

The Commonwealth holds these amounts in trust for the former

employee.

The former employee can recover these monies from the Fair Work

Ombudsman.

TERMINATION ENTITLEMENTS Notice of Termination

As this is a termination on the initiative of the employer, permanent

full-time or part-time employees may be entitled to notice of

termination pursuant to the National Employment Standards,

industrial instrument or contract of employment.

However a termination of this nature could be considered

serious misconduct and result in notice of termination not being

payable.

TERMINATION ENTITLEMENTS Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act,

serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes

both of the following:

(a) wilful or deliberate behaviour by an employee that is

inconsistent with the continuation of the contract of

employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's

business.

TERMINATION ENTITLEMENTS (3) For subregulation (1), conduct that is serious misconduct includes

each of the following:

(a) the employee, in the course of the employee's employment,

engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable

instruction that is consistent with the employee's contract of

employment.

TERMINATION ENTITLEMENTS (4) Subregulation (3) does not apply if the employee is able to show

that, in the circumstances, the conduct engaged in by the

employee was not conduct that made employment in the period of

notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the

employee's faculties are, by reason of the employee being under

the influence of intoxicating liquor or a drug (except a drug

administered by, or taken in accordance with the directions of, a

person lawfully authorised to administer the drug), so impaired that

the employee is unfit to be entrusted with the employee's duties or

with any duty that the employee may be called upon to

perform.

Regulation 1.07 Fair Work Regulations 2009

UNFAIR DISMISSAL Where an employee has abandoned their employment and the

employer has accepted the employee’s repudiation of employment,

it is taken that the termination is at the ‘initiative of the employer’.

This could provide the employee with jurisdiction to lodge an unfair

dismissal claim on the basis that the termination is harsh, unjust or

unreasonable.

CASE STUDY L v Inghams Enterprises Pty Ltd [2013] FWC 3447

The Commission held that the employer had correctly decided that

the employee had abandoned his employment.

The termination was for a valid reason and the termination had

been procedurally fair. However despite this it was determined that

the termination was harsh because the employer could have

granted the employee more latitude because of his long period of

employment and his known medical problems.

CASE STUDY Sharpe v MCG Group Pty Ltd [2010] FWA 2357

The Commission held that the employee did not abandoned her

employment, and therefore concluded that the applicant could

pursue her unfair dismissal claim.

‘….whether or not MCG accepted that this incapacity was

genuine, is not an issue that goes to the question of whether or

not Ms Sharpe abandoned her employment.’

‘The fact that an employee who is totally incapacitated chooses

to move to another location during the period of the incapacity,

is not necessarily an indication that the employee is

abandoning her employment.’

CASE STUDY Sandic v Perroplas Australia Pty Ltd [2010] FWA 8682

The Commission held that the employee had abandoned his

employment when he failed to return from annual leave, but

subsequently returned to work some 7 weeks later.

In this case the employee was advised, prior to going on the leave,

that his failure to return to from leave would result in termination of

employment.

QUESTIONS

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