HAPPY New Year – and welcome to our first Workplace Bulletin for 2018.
While you and I are back at work, there’s a good chance many of our colleagues are taking the opportunity to enjoy a few more days off over the summer period – all with approved leave, of course.
But what happens when your workers don’t come back when they are due? How long do you have to wait before assuming they’re never coming back? And then what can you do?
Abandonment of employment occurs when an employee fails to turn up to work and has not given their employer any reason why.
An employee’s abandonment of their work is considered reasonable grounds for dismissal – particularly if it is reasonable to conclude that they no longer wish to work for you.
However, it is important to remember that abandoning the job is not a form of resignation – even if the employee regards it as such.
Just because an employee doesn’t turn up to work, doesn’t mean that they have necessarily abandoned their job.
In most cases a court or industrial tribunal is likely to focus on the intention of the employee rather than the period of unexplained absence – so a key to working out what you should do will come from ascertaining what the worker’s intentions are.
Frustrating – but not in that way…
The bar for terminating a worker’s employment due to abandonment is set very high.
It is important to note that abandonment of employment is treated differently to an unforeseen event that makes it impossible for an employment contract to continue.
The Employment Interruptions chapter in the Employment Law Practical Handbook says these events include things like the death or the imprisonment of the employee – they should be events that neither you nor the employee contemplated when the contract was signed.
These events will automatically terminate a contract without action from either you or the worker – and means that the employee is not entitled to claim for notice, a redundancy package, dismissal or unlawful discrimination.
But again, the bar for proving this is set very high. To work out your best course of action you should:
Step 1: Contact the employee
Typically, you will have spoken to the employee on the first day of their absence – which may mean the process below can be expedited.
However, if this is not possible, you should attempt to speak to the employee – either in person or on the phone – by the third day to ask what is going on.
When you do this, ask for an explanation and tell the employee that you will assume they have abandoned their employment if they do not respond in a specified timeframe.
You should also put these questions to the employee in writing, including a request for an explanation and a timeline for an expected response.
It would be best to send this letter by registered post, so you have proof that the letter was posted and can get proof that the letter was received.
Step 2: Contact a relative or next of kin
If you cannot contact the employee directly, try to contact a relative or the employee’s next of kin.
You must take steps to do this before concluding that the employee has abandoned their employment, because the employee may not be able to contact you themselves, due to circumstances beyond their control – such as hospitalisation.
Step 3: Determine what action to take based on the employee’s response
If the employee responds to your queries but does not give a satisfactory reason for their absence, it will become a disciplinary matter.
If the employee does not respond to you in the timeframe specified in the letter – and you can be sure that they have received it – then you can assume that they have abandoned their employment and can proceed with any termination payments.
One more word of warning
Be sure to review your employee contract and any awards that your workers might be subject to – as some have a set of rules covering abandonment of employment which you should observe.
There are five awards that contain a clause that allows an absence of more than three days as evidence a worker has abandoned their employment, and an absence of 14 days without reasonable cause showing clearly that they have.
However, even under those awards, the employee’s abandonment of employment does not equal an automatic termination of employment.
As a full bench of the Fair Work Commission decided in January 2017 in Boguslaw Bienias v Iplex Pipelines Australia Pty Limited (2017), the abandonment of employment clause requires the employer to take an active step to terminate the employment.
For further information
The Resignation chapter in the Employment Law Practical Handbook looks at the issue of abandonment of employment in further detail.