At the Workplace Helpdesk we regularly receive all sorts of questions from our subscribers.

One employer recently contacted us to find out what exactly constituted abandonment of employment and how they could approach an employee leaving his job.

Question:

Our worker has purchased a one-way ticket to travel overseas to see his sister who has become terminally ill. He tells us he doesn’t know when he’ll be returning.

We are unable to keep his job open indefinitely and our company policy states that if an employee is unable to provide a return date, they will be required to resign from their position. We said we will find him another suitable position when he comes back.

However, he has refused to sign the resignation form and we are not terminating him.

We have advised our insurance company that he is going overseas, but we aren’t sure what the regulations are surrounding WorkCover payments as he has the capacity to work.

He has about two weeks of annual leave left, which he has requested to be paid out. All his other leave entitlements have been used up.

He told us he will contact us in 10 days to let us know what is happening when he arrives overseas.

How long are we obligated to keep this job open for him and what are the ramifications in relation to WorkCover?

Are we right to assume that if he doesn’t contact us after 10 days we can say that he abandoned his position?

Answer:

You can’t assume after 10 days that the employee has abandoned his position.

Establishing that an employee has abandoned their employment is a high bar to meet and you would need to be able to show that the employee has not been in communication with you at all before you can declare this.

Given this, you could write to the employee seeking more information with regards to their absence and informing them that if they don’t reply within a specified timeframe you will assume they have abandoned their employment.

In order to terminate the employment, you would need to show that the employee has failed to comply with a lawful and reasonable direction of the company.

Accordingly, you could direct him to provide an explanation (and if appropriate, further evidence) of the reason for his absence from work and if he knows when he is likely to be back – also clarifying whether he believes he is on annual leave, personal leave, or unpaid leave. You could then take disciplinary action if he fails to comply.

Alternatively, if the employee is covered by a modern award that contains an abandonment clause, this will set out the requirements for terminating the employment in these circumstances.

You may also wish to discuss this with your insurer as to what will occur with further payments.

Given your situation, in particular that he is currently on WorkCover, and that there has been a family emergency, terminating his employment could expose the company to significant liability (discrimination, unfair dismissal, general protections). We would recommend that you seek specific legal advice prior to terminating his employment.