Abandonment of employment

See what information you need to know about abandonment of employment from a HR perspective with our helpful checklist and other resources.

Abandonment usually arises in circumstances where an employee is absent from work without a reasonable excuse for an unreasonable period of time without having communicated to the employer any reason for the absence. For an employee to have abandoned their employment, it must be clear that the employee has clearly demonstrated an intention to no longer be bound by the terms of the contract of employment. See Searle v Moly Mines Limited [2008] AIRCFB 1088; GlaxoSmithKline Australia Pty Ltd v Gauci [2008] AIRCFB 439; Lodder v Department of Families, Housing, Community Services and Indigenous Affairs [2008] AIRC 684 — Hoffman C. 29/9/08 and Chelvarajah v Kirwan Security Services — AIRC — Mansfield C. PR935865 13/8/03.
 
Contact employee
 
In dealing with such cases, the employer should follow a number of steps. Firstly, attempt to contact the employee via telephone, mobile phone, email, work colleagues, etc. Secondly, if no contact has been made with the employee a letter by registered mail to the employee’s home address appearing on the company’s records asking the employee to contact the company as soon as possible. An employee’s absence for one or two days could not be construed as abandonment. See Moore v Levelan Pty Ltd, AIRC Hamilton DP, PR944224, 5/3/04. If the employee has made no attempt to contact the company as to continuing their employment, or the excuse for the absence is unsatisfactory, the employer must assume that the employee has abandoned their employment from the date the employee last attended for work.
 
Failure to return from leave
 
However, an employee who did not return from annual leave but subsequently returned to work some 7 weeks later, who was previously advised that failure to return from leave would result in termination of the employment, was deemed by Fair Work Australia to have abandoned his employment. See Sandic v Perroplas Australia Pty Ltd [2010] FWA 8682 13 December 2010.
 
Total incapacity
 
An employee, who had a medical certificate indicating she was totally incapacitated for work for 3 months, and moved location in that period, was deemed not to have abandoned her employment. See Susann Sharpe v MCG Group Pty Ltd [2010] FWA 2357 22 March 2010.
 
Modern awards
 
Some modern awards contain a provision regarding abandonment of employment. This usually regards an absence of more than three consecutive working days without the employer’s consent and no notification to the employer. A further 14 day period of absence without satisfying the employer there is a reasonable cause would result in the employee being deemed to have abandoned his/her employment.
 
For example, clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010 refers to abandonment of employment, although reference should be made to the relevant industrial instrument to determine the whether minimum periods of absence are stipulated before the employer can presume an employee has abandoned employment. For interpretation of similar provision to the modern award, see Georgievski v Caroma Industries Limited [2001] AIRC 1135.
 
Unreasonable withholding of leave by employer
 
Where permission for leave of absence is unreasonably withheld by the employer and the employee proceeds on such unauthorised leave, abandonment of employment would not apply. See Dun & Bradstreet (Australia) Pty Ltd v Robbie [1999] NSWIRComm 316 (20 July 1999). The NES also provides that an employer cannot unreasonably refuse an employee’s application for annual leave.
 
 

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