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HOW TO HANDLE AN
ABANDONMENT OF
EMPLOYMENT
Presented by:
Wesley Davey, Senior Employment Relations Adviser© June 2016
DISCLAIMER
The QHA has taken every available step to ensure the accuracy of
this presentation.
Whilst every effort has been made to ensure that the information
contained in this presentation is free from error and/or omissions,
no responsibility is accepted by the QHA, it’s employees or any
other person involved in the preparation of this presentation for any
claim which may arise from any person acting on information
contained herein.
The information in this presentation is provided as general advice
only. It does not constitute legal advice and it is always advisable to
seek further information regarding your own specific employment
relations issue.
SESSION CONTENT
What is an abandonment of employment?
Common abandonment situations
Process to follow to determine whether an employee has
abandoned their employment
Employee termination entitlements in abandonment situations
Risk of unfair dismissal
Case studies
WHAT IS ABANDONMENT OF
EMPLOYMENT? Abandonment arises in circumstances where an employee:
Is absent from the workplace without reasonable excuse;
For an unreasonable period of time; and
Has not communicated to the employer any reason for their
absence.
For an employee to have abandoned their employment, it must be
clear that the employee has demonstrated an intention to no longer
be bound by the terms of their contract of employment.
WHAT IS ABANDONMENT OF
EMPLOYMENT? Erbacher v Golden Cockerel Pty Ltd [2007] AIRC 491 - noted that
abandonment of employment is not quantified in time but requires
an analysis of what happened at the time and a consideration of
the intent of the employee.
Searle v Moly Mines Limited [2008] AIRCFB 1088 - noted that part
of the analysis of whether an employee has abandoned their
employment is looking at whether the employee has clearly
demonstrated an intention to no longer be bound by the terms of
the contract of employment.
WHAT IS ABANDONMENT OF
EMPLOYMENT? At common law, an abandonment of employment by an employee
constitutes a repudiation of the employment contract.
Repudiation occurs where the employee clearly indicates through
their actions an absence of readiness or willingness to perform
their contractual obligations.
With repudiation, the employment is not terminated until the
employer accepts the employee’s repudiation and terminates their
employment contract – therefore the termination is on the initiative
of the employer.
ABANDONMENT SITUATIONS Below are examples of where an employee may be regarded as
having abandoned their employment:
Employee walking out during a shift and not returning for the
remainder of that shift or any other rostered shifts;
Employee not returning from approved leave;
Employee not attending for work for a consecutive period
without communicating their absence to their employer;
Employee failing to keep in contact with their employer during a
period of absence or provide medical certificates to cover their
absence, despite being asked by their employer to do so.
PROCESS STEP 1
Make genuine attempts to contact the employee to ascertain the
reason for their absence from the workplace.
Methods of contact may include telephone, mobile phone, email or
fax.
Make file notes of all attempts to contact the employee, including
any message left and conversations had.
Keep file notes on the employee’s personnel file.
PROCESS STEP 2
Where the attempts to contact the employee in step 1 are
unsuccessful, the second step should be to send a letter to the
employee’s last known postal address via registered post or an
email with automatic sender notification activated.
In making contact with the employee, the employer should seek to
obtain the following information:
The reason for the absence;
If the absence is due to a medical condition, appropriate
evidence;
If the reason is not due to a medical condition, an explanation
of the absence from the employee and an indication of what
their intention is regarding their employment.
PROCESS STEP 3
Where the employee fails to respond to the letter/email sent in step 2, the
third step is to send another letter/email.
The correspondence should:
Set out all the attempts the employer has made to contact the
employee (including specific details such as dates, details of message
left, emails, SMSs, letters and any other contact methods); and
Notify the employee that if by a specific date (stipulated by the
employer), no contact is made by the employee or a valid reason for
their absence is not provided, the employer will deem that the
employee to have abandoned their employment; and
This amounts to a repudiation of the employment contract; and
The employer will accept the repudiation and terminate the
employment contract.
PROCESS STEP 4
If the employee fails to respond to the letter or email sent in step 3
or fails to provide a reasonable excuse for their absence, the next
step would be to send a final letter/email to the employee.
The correspondence should notify them that:
The employer has deemed that they have abandoned their
employment;
That this constitutes a repudiation of the employment contract;
and
That the employer has accepted the repudiation and decided to
terminate the employment contract.
TERMINATION ENTITLEMENTS
Outstanding Entitlements
Outstanding entitlements upon termination must be paid to the
employee.
If the employer is unable to pay outstanding entitlements to the
employee, section 559 of the Fair Work Act 2009 requires an
employer to pay the outstanding wages or entitlements to the Fair
Work Ombudsman (on behalf of the Commonwealth).
The Commonwealth holds these amounts in trust for the former
employee.
The former employee can recover these monies from the Fair Work
Ombudsman.
TERMINATION ENTITLEMENTS Notice of Termination
As this is a termination on the initiative of the employer, permanent
full-time or part-time employees may be entitled to notice of
termination pursuant to the National Employment Standards,
industrial instrument or contract of employment.
However a termination of this nature could be considered
serious misconduct and result in notice of termination not being
payable.
TERMINATION ENTITLEMENTS Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act,
serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes
both of the following:
(a) wilful or deliberate behaviour by an employee that is
inconsistent with the continuation of the contract of
employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's
business.
TERMINATION ENTITLEMENTS (3) For subregulation (1), conduct that is serious misconduct includes
each of the following:
(a) the employee, in the course of the employee's employment,
engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable
instruction that is consistent with the employee's contract of
employment.
TERMINATION ENTITLEMENTS (4) Subregulation (3) does not apply if the employee is able to show
that, in the circumstances, the conduct engaged in by the
employee was not conduct that made employment in the period of
notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the
employee's faculties are, by reason of the employee being under
the influence of intoxicating liquor or a drug (except a drug
administered by, or taken in accordance with the directions of, a
person lawfully authorised to administer the drug), so impaired that
the employee is unfit to be entrusted with the employee's duties or
with any duty that the employee may be called upon to
perform.
Regulation 1.07 Fair Work Regulations 2009
UNFAIR DISMISSAL Where an employee has abandoned their employment and the
employer has accepted the employee’s repudiation of employment,
it is taken that the termination is at the ‘initiative of the employer’.
This could provide the employee with jurisdiction to lodge an unfair
dismissal claim on the basis that the termination is harsh, unjust or
unreasonable.
CASE STUDY L v Inghams Enterprises Pty Ltd [2013] FWC 3447
The Commission held that the employer had correctly decided that
the employee had abandoned his employment.
The termination was for a valid reason and the termination had
been procedurally fair. However despite this it was determined that
the termination was harsh because the employer could have
granted the employee more latitude because of his long period of
employment and his known medical problems.
CASE STUDY Sharpe v MCG Group Pty Ltd [2010] FWA 2357
The Commission held that the employee did not abandoned her
employment, and therefore concluded that the applicant could
pursue her unfair dismissal claim.
‘….whether or not MCG accepted that this incapacity was
genuine, is not an issue that goes to the question of whether or
not Ms Sharpe abandoned her employment.’
‘The fact that an employee who is totally incapacitated chooses
to move to another location during the period of the incapacity,
is not necessarily an indication that the employee is
abandoning her employment.’
CASE STUDY Sandic v Perroplas Australia Pty Ltd [2010] FWA 8682
The Commission held that the employee had abandoned his
employment when he failed to return from annual leave, but
subsequently returned to work some 7 weeks later.
In this case the employee was advised, prior to going on the leave,
that his failure to return to from leave would result in termination of
employment.
QUESTIONS
THANK YOU