It is important for employers to be aware that an abandonment of employment will not simply arise as soon as an employee has not turned up to work for a shift they were required to do and are aware of the requirements that need to be followed to ensure there has been a genuine abandonment.
Abandonment of employment is usually characterised by an employee being absent from work without a reasonable excuse for an unreasonable period of time.
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.
‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment, without proper excuse or explanation, and as a result shows an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a ‘renunciation’ of the employment contract.
Abandonment of employment could be an employee walking out during a shift and not returning for the remainder of that shift or any other rostered shifts, an employee not returning from approved leave, an employee not attending for work for a consecutive period without communicating their absence to their employer, an 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.
For an employee to properly have abandoned their employment, it must be clear that the employee has demonstrated an intention to no longer be bound by the terms of the contract of employment, for example, they have no intention to return to work or continue doing the role.
Generally, an employer should wait a reasonable period of time (sometimes suggested as 3 days) before considering an employee has abandoned their employment, and make every reasonable effort to contact the employee, including any emergency contact. The MTA recommends that employers send the Notice of Abandonment Letter first (normally at 3 days absence), and then wait 7 days for a response. If no contact received, then send a Confirmation of Abandonment Letter, and at this time treat the employment as terminated at the initiative of the employee and make payment of any final pay within 7 days, using the same payment method ordinarily used to pay the employee’s ordinary wages.
Abandonment of employment is not dealt with under the Fair Work Act 2009 and is not discussed in any of the relevant Modern Awards.
Due to the absence of legislated guidelines dealing with an abandonment of employment it is best practice for an employer to go to lengths to show numerous attempts at communicating with the employee were made. It also must be shown that they gave the employee a specified and reasonable time to respond to a notice of abandonment.
Dealing firstly with attempting to contact the employee, this cannot simply be a single call or email and would require multiple and various attempts at contact being attempted. This can include phone calls, emails, text messages, and registered mail.
If contact is made with an employee and they state will not be returning then their employment can be terminated. If there has been no success with this contact however an employer should then try to contact the employee’s nominated contact to see if they are aware of their whereabouts.
Where an employee does make contact during this process, whilst the employment can’t be considered abandoned, you can still then proceed towards appropriate disciplinary action.
