Has employment been abandoned?

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Has employment been abandoned?

When can employers conclude that someone has abandoned his/her employment?

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If an employee hasn't shown up for work for weeks, can we consider he has abandoned his employment?

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Q An employee has been absent from work for more than two weeks and has not made any contact with management or responded to colleagues' attempts to contact him. The company has concluded the employee has abandoned his employment.

Our contracts of employment do not contain terms which refer to an employee abandoning their employment, nor do we have a company policy on this issue. The relevant modern awards do not contain an abandonment of employment clause.

Does the company still have the right to pursue abandonment of employment despite the absence of any specific provision in our contracts, company policies or the modern awards?
 
A In the absence of a term in a contract or relevant award, there are common law principles which underpin this circumstance. The applicable modern award may contain terms which provide a mechanism by which abandonment can be presumed but this does not automatically terminate the contract of employment. An employer is still required to take the additional step of ending the employment relationship.

Common law principle


In common law, the abandonment of employment by an employee constitutes a repudiation of his/her employment contract. However, the contract is not terminated until or unless that repudiation is accepted by an employer. It is the action of the employer in accepting the repudiation that brings about a termination of the employment.

This issue has been considered by a Fair Work Commission full bench which confirmed that an employer must take the additional step of ending the employment relationship when an employee abandons their employment.

This means that even where there are terms in a contract or a modern award, they do not operate to automatically end the employment relationship. The full bench also said that if the award did automatically terminate the employment when an employee abandoned their employment, it is not permitted or required in a modern award, and the Fair Work Act (s136) renders it ineffective. See  Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38 (13 January 2017).

Modern awards


While an abandonment of employment clause in a modern award could be interpreted as automatically terminating employment in certain circumstances, such clauses are forbidden by Fair Work Act 2009 [Cth] (s136).

There are several modern awards that contain such a clause:
  • Business Equipment Award 2010
  • Contract Call Centres Award 2010
  • Graphic Arts, Printing & Publishing Award 2010
  • Manufacturing & Associated Industries & Occupations Award 2010
  • Nursery Award 2010
  • Wool Storage, Sampling & Testing Award 2010
Generally, these awards say that the failure of an employee to show up for work for three days (two days in the Business Equipment Award) without giving advance notice amounts to prima facie evidence that a worker has abandoned his or her employment. If an employee does not then establish within 14 days, to the satisfaction of the employer, that there was a reasonable cause for the absence then the employee is deemed to have abandoned his or her employment.

The Business Equipment Award has a seven-day limit. The Wool Storage Award is more restrictive as an employee is deemed to have abandoned employment merely by being absent for three days without excuse.

The bottom line: While an applicable modern award may contain terms which provide for abandonment of employment, an employer is still required to take the additional step of ending the employment relationship.

 


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