By Charles Power
An employee ‘abandons’ their employment when they are absent from the workplace without reasonable excuse, or have failed to communicate with the employer to provide an excuse for being absent.
The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer that the employee is walking away from his or her employment contract.
When there is true abandonment of employment, the employment will end but not as a consequence of dismissal by the employer. Therefore the employee will not be entitled to notice or payment in lieu. The employee will also not be able to claim unfair dismissal.
In Thompson v Zadlea Pty Ltd T/A Atlas Steel (2019) the Fair Work Commission (FWC) had to determine whether an unfair dismissal applicant had abandoned his employment or whether his employment had ended at his employer’s initiative.
The employee had had an altercation at work on 21 and 22 June 2018. After leaving work on 22 June he managed to obtain an appointment with his GP who certified him unfit for work until 5 July 2018.
The employee forwarded the certificate to the employer and made a workers’ compensation claim. However the employer was not aware of this until 6 July. In the meantime it had treated the employee as having abandoned his employment on 25 June.
The FWC considered the employee had not acted as someone who had abandoned their employment. Rather the employee’s actions were consistent with someone who was suffering at the time from work-related stress and anxiety, and required a period of leave from work as a consequence.
The FWC observed the employer was not entitled to conclude in all the circumstances that after a period of only three days absence from work, that the employee had abandoned his employment.
Instead it should have carried out some form of investigation into the issue that arose at the worksite on 21 June to understand what had occurred on that day, and to ensure that there was no repetition of that kind of behaviour.
The employer should have also attempted to contact the employee to ascertain why he was not at work.
The FWC ruled the applicant employee could not be said to have abandoned his employment. It went on to rule that dismissal was unfair and awarded the applicant compensation.