- within Employment and HR topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- with readers working within the Accounting & Consultancy, Automotive and Basic Industries industries
In a recent decision of the Fair Work Commission in the matter of Debora Tavares Alves v The Trustee for T.C. Future Investment Unit Trust [2025] FWC 2025, the Commission was tasked with clarifying misconceptions on abandonment of employment.
The applicant, Ms Alves was an Office Manager for CNA Accountants (the trading name for T.C Investment Unit Trust) who, after an extreme medical episode, became absent from work on 9 November 2024. Apart from initial notifications and contact from her daughter, subsequent attempts by CNA to obtain updates on Ms Alves' absence, including a formal letter on 16 December 2024, requesting medical information went unanswered.
On 15 January 2025, CNA sent Ms Alves a letter to her personal email address headed "Termination of Employment", asserting that Ms Alves had abandoned her employment and that she would be provided a notice period of five weeks. Ms Alves's employment was terminated five weeks later effective 19 February 2025.
On 2 April 2025, Ms Alves made an application claiming she was dismissed from her employment under the General Protections provisions of the Fair Work Act 2009 (Cth). The application filed by Ms Alves revealed that she had been hospitalised following a life-threatening illness on 10 November 2024 and had been diagnosed with PTSD, anxiety and major depression, with recovery expected to take up to two years.
With the application filed clearly outside of the 21-day timeframe, the Commission formed a view that there were exceptional circumstances. The Commission granted an extension of time and her application was accepted despite the delay.
In determining Ms Alves' application, the Commission found that the termination was not a termination initiated by the employer, but rather a consequence of Ms Alves having abandoned her employment with CNA.
The concept of abandonment explained
The Commission approached the concept of abandonment of employment as the Full Bench of the Commission did so in the matter of John David Bourke Jamie Clifford and Others v OS MCAP Pty Ltd [2022] FWCFB 178 with an analysis that required an "objective assessment".
"[48] Application of the test for abandonment of employment requires an objective assessment, of "whether the employee's conduct is such to convey to a reasonable person in the position of the employer and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment."
The Commission adopted the four components of the test argued by CNA arising out of Ally Hyde-Nawell v Children's Rights Australia Limited [2024] FWC 30 and in the matter of OrryThompson v Zadlea Pty Ltd trading as Atlas Steel [2019] FWC 1687:
- An unexplained or unauthorised absence from the workplace.
- A reasonable period of time where the employee has been absent without explanation or authorisation.
- Whether there was any communication from the employee during the absence or the communication from the employee clearly displays an intention of not returning for work.
- Whether there was any enquiry by the employer in the time period when the employee was absent
In applying the above, the Commission found that:
- Ms Alves ceased attending work from 9 November 2024 without providing ongoing medical updates;
- the absence extended for months, despite the employer's repeated requests for information;
- there was no direct communication from Ms Alves during her absence that indicated an intention to return; and
- CNA made multiple attempts to contact Ms Alves, including a formal letter on 16 December 2024 and by email on 15 January 2025.
The Commission found that CNA acted reasonably in concluding that Ms Alves had abandoned her employment.
Key takeaways
This case reinforces three critical points:
Abandonment is an objective test
The Commission will look at what a reasonable employer would conclude based on the facts at the time, not on later explanations. Prolonged absence without communication can amount to a repudiation of employment, even if the employee has genuine health issues.
Procedural fairness still counts
Employers must make reasonable efforts to contact the employee and request updates before acting. Documenting these steps is essential to defend against claims.
Extensions don't guarantee success
While serious medical emergencies may justify late applications, they do not change the underlying merits. If the termination is found to be due to abandonment rather than a termination at the employer's initiative, a claim will likely fail.
Need guidance on managing employee absences or understanding your workplace rights? Contact our employment law specialists today for expert advice.
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.
