Abandonment of employment is more than refusal to return to work

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Abandonment of employment is more than refusal to return to work

The NSW IRC has awarded a senior consultant more than $25,000 in an unfair contracts decision after concluding that the employer had incorrectly interpreted his refusal to return to work as abandonment of employment.

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The NSW IRC has awarded a senior consultant more than $25,000 in an unfair contracts decision after concluding that the employer had incorrectly interpreted his refusal to return to work as abandonment of employment.
 
Abandonment of employment usually has the element of an employee failing to present for work and an employer making reasonable attempts to contact the employee without success. In this case the employer and employee were in regular contact - differing over the obligations arising under the contract of employment.
 
Consideration of evidence
 
Justice Peterson summarised the situation as follows:
'What seems to me to have occurred in mid-March 2000 is that the applicant, acting upon a misconception of his contractual rights, adopted the view that he had a right to reject any assignment upon which he might be offered consultancy work, whether because of the nature of the work, its location or any other reason.
 
'His contract did not give that right; the work was defined as "Consultant and such other additional or other duties, functions and responsibilities as the Company and the Employee shall from time to time agree".Here the work being offered to him, which he was refusing, was work as a consultant. The question arises whether this put him in breach of his contract ...
 
'In these circumstances, it was premature ... to form the conclusion that the applicant had abandoned his employment. It was certainly incorrect to conclude that he had done so from Thursday, 9 March, he having actually undertaken some work on Friday, 10 March 2000 and having the intention to return to Sydney the following Wednesday to effect ... a presentation [to a client] ...
 
'[Note, however,] his continued refusal would unquestionably have created a right for the respondent to treat the applicant as being in breach justifying dismissal.
 
'In these circumstances, this is not a case which may be determined on the basis that fault is wholly to be laid at the feet of one party. The fault is fairly evenly distributed between the parties. If the applicant had complied with his contractual obligations, this case would not have arisen. Equally, if [the employer] had granted the applicant an interview the matter would have taken some different course, or at least have crystallised the parties' positions.
 
'However, the applicant was told he had abandoned his employment in circumstances where I have concluded he did not. That means he was actually being denied an opportunity to persist with his employment...'
Justice Peterson concluded that the employee was erroneously regarded as having abandoned his employment and this was obviously an unfair conduct sufficient to entitle him to relief under s.106. (Reich v Client Services Professionals of Australia Pty Limited (Administrator Appointed) (2000) 49 IR 69 at 83).
 
Three months' notice or three months' pay in lieu thereof was ordered.
 
See: Attwell v Maxx Implementation Pty Ltd [2003] NSWIRComm 52 - IRC (NSW) (Peterson J) - 10 March 2003.
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