Whether or not an employee has actually abandoned their employment can be a tricky matter to determine, and each case needs to be determined on its own particular set of circumstances. Here are a few things to bear in mind when making the call in your workplace...
To be able to claim that an employee has abandoned their employment there must be a clear act by the employee that indicates an intention by him/her to no longer be bound by the terms of the employment contract. Such an act would typically include the employee not turning up for work over an extended period without explanation.
Is there a definition of "extended period"?
Some modern awards including the Nursery Award, Manufacturing and Associated Industries and Occupations Award, Graphic Arts, Printing and Publishing Award, Contract Call Centres Award and the Business Equipment Award, contain an abandonment clause that states the following:
- The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is evidence that the employee has abandoned their employment.
- If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted and employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.
- Termination of employment by abandonment in accordance with this clause operates as from the date of the last attendance at work or the last day's absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the latter.
For those who employ staff covered by modern awards that don't define "abandonment," and/or, for those that employ staff who are award free – you have to rely on a body of case law to guide your actions.
The general guiding principles that come out of those cases include:
- the employee needs to have been absent for an extended period (14 days or more is a good rule of thumb given the award clause);
- the absence needs to be unexplained; and,
- not attending on one or more days does not constitute abandonment – but would likely qualify as an unauthorised absence and therefore a basis for disciplinary action (and depending on the circumstances, possibly grounds for termination).
If faced with this situation – follow these steps:
- Check if the relevant employee is covered by a modern award and if they are, whether or not the award has an abandonment clause.
- Initially, attempt to contact the employee by phone and make a note of all such attempts (dates and times).
- After 14 days – write to the employee (post and email) requesting an explanation for their absence by a specified date, and put him/her on notice that should no response be received (or should they not provide a reasonable explanation for their absence/failure to communicate with you), you will have no choice but to determine that they have abandoned their employment and proceed accordingly.
- Write again to the employee and confirm that in light of their conduct you have no choice but to conclude that he/she has abandoned his/her employment, and confirm the termination date and any outstanding payments.
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.