What constitutes an abandonment of employment?

Two recent FWC cases demonstrate how to properly assess abandonment of employment, and the risks for employers who act too quickly.

When an employee is absent from work with no explanation, employers must walk a fine line between showing concern for the individual and maintaining clarity about the employment relationship.

A recent case heard by the Fair Work Commission (FWC), in which an unfair dismissal claim was rejected due to the employee having abandoned his role, has shed light on the best way to strike this balance.

After taking a period of authorised sick leave, the employee in this case failed to return to work on the date he'd agreed with his employer, and did not respond to follow-up communications from his supervisor.

Several days later, the employer sent him an email warning him that if he did not respond by the following week, his employment would be terminated. He did not respond to this email before the deadline, and the employer terminated his employment a day later.

The Commission accepted that the employer in this case had followed a fair process, documenting its attempts to reach the employee and giving him a clear deadline to confirm his intentions.

However, previous rulings have also demonstrated that assuming abandonment too quickly or mismanaging the process can lead to a very different outcome.

Below, Michael Byrnes, Employment Partner at law firm Swaab, explains the legal test for job abandonment, and what cases like the one mentioned above can tell us about managing it in a fair and legally sound way.

What constitutes abandonment of employment?

According to Byrnes, abandonment of employment occurs when an employee's conduct demonstrates an intention not to be bound by their employment contract.

"It's a form of repudiation," he says. "There are two elements that are going to be required for an employer to successfully assert that an employee has abandoned their employment."

Firstly, he says, the employer needs to demonstrate that an employee has not presented for work for a specified period of time.

"There's no hard and fast rule about how long that is," he says. "Some policies and enterprise agreements have particular time frames in them. But it requires absence for a reasonable duration, which is generally at least three days."

However, a certain period of absence does not necessarily constitute job abandonment. The second crucial factor is whether the employee has failed to respond to repeated attempts to contact them during their absence, he says.

The employer in the case above was able to demonstrate several attempts to contact the employee via both email and text, and gave him a clear and reasonable deadline to confirm his continued employment.

The employee in question also had a history of attendance concerns, which the employer was able to prove by submitting his performance improvement plan into evidence.

"Those previous absences, even though they're not of themselves abandonment, would have assisted the employer in arguing that the dismissal was fair, because this was the latest in a pattern of conduct," says Byrnes.

Taken together, these factors were enough to prove that the employer had acted reasonably, and that the employee's failure to respond to communications signalled a withdrawal from the employment relationship.

The legal risks of assuming job abandonment

Byrnes notes that employers sometimes move too quickly to characterise an unexplained absence as abandonment, particularly if it seems more convenient than carrying out a procedurally fair dismissal process.

"To prove abandonment, the employer needs to have reached out to the employee to find out what's going on – it's not enough just to sit back and say, 'Well, the employee hasn't turned up for three days, therefore it's abandonment,'" he says.

The legal risks of assuming abandonment were laid bare in another case heard by the FWC in June this year, when an employer claimed an employee had abandoned his role after he missed a day of work without explanation.

The absence fell immediately before two days of authorised leave, and the employee did not respond until after he returned from authorised leave. When he did respond, he apologised and explained he had been ill. The employer replied that this late explanation was "not good enough".

The employee then checked his roster for the following week and saw he was not scheduled to work. When he flagged this, the employer told him it was because he hadn't properly addressed his unexplained absence.

The employee challenged this decision, arguing he could not be stood down as a full-time employee without meeting strict legal requirements. After being left off the roster for a second week, he brought an unfair dismissal claim to the FWC.

During the discovery process for the case, the employer acknowledged that it had assumed the employee had "finished" his employment. The Commission found that this assumption was not reasonable, as the employee had explained his absence, apologised and continued to seek clarity about his shifts.

"If an employee is indicating that they are ready, willing and able to continue with their employment, that is inherently inconsistent with the notion of abandonment," says Byrnes.

The FWC therefore ruled that the employee was dismissed at the employer's initiative, and he was given the green light to proceed with his unfair dismissal claim.

While the employee's conduct in this case did not constitute abandonment, this does not mean employers can't discipline employees for missing work in instances like this, adds Byrnes.

"You might look to take disciplinary action for an unauthorised absence without proper explanation. But that's a different concept to abandonment," he says.

How should HR respond to job abandonment?

If an employee is absent from work without explanation, employers should take a careful, staged approach to investigating the issue, says Byrnes.

There are many potential reasons an employee may not respond immediately, including illness or an emergency situation. Initial communication should therefore be empathetic rather than accusatory.

"Initially you'd say something like, 'We can see you're away today. You've not made any contact. Are you okay? Is everything all right?'" says Byrnes.

"Use different methods of communication, [such as] text and email. And if you can't contact the employee, you should endeavour to contact the employee's emergency contact."

If the silence continues, employers should escalate the tone and clarity of their messages.

"After a few days and attempts to contact them, say [something like], 'We've contacted you on these occasions, and we've taken the liberty of contacting your emergency contact, who has indicated that as far as they are aware, there's no issue preventing you from communicating with us. You've now been absent without explanation for this number of days and, if you don't present for work on this date, we will assume you've abandoned your employment.'"

To mitigate the risk of an unfair dismissal claim, employers should retain copies of texts, emails and call records demonstrating attempts to reach the employee, as well as any relevant evidence of past conduct or the impact of the absence on the business.

This can be particularly important for small businesses, adds Byrnes.

"There's only so much latitude a small business can give to an employee to be absent without authorisation or explanation, [because] it leaves a smaller business in the lurch. So in determining the fairness of the termination, the Commission will likely take that into account."

What matters most, he says, is resisting the urge to jump to conclusions before the facts are clear.

"Job abandonment is not something to seize upon opportunistically – if employers do that, it is likely to backfire."

For further information please contact:

Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au

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.