No show at work: has job been abandoned?

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No show at work: has job been abandoned?

If someone fails to show up at work and can't be contacted, can you assume they have abandoned their job? And does that automatically terminate the employment relationship?

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

It has complied with the abandonment provisions under the applicable award (Manufacturing and Associated Industries and Occupations Award 2010). Having followed proper process, can we presume the employee has resigned? Or does it require some other action by the company, such as an official notification to the employee (who appears to be uncontactable)?
 
A This issue was recently considered by a Fair Work Commission full bench. It confirmed that an employer must take the additional step of ending the employment relationship when an employee abandons their employment. This means the abandonment clause in a modern award does 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 (s137) renders it ineffective. See B v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia [2017] FWCFB 38 (13 January 2016).

Common law principle

Likewise, in common law, the abandonment of employment by an employee constitutes a repudiation of his/her employment contract.

Howver, 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.

Review of abandonment clauses in modern awards

A Fair Work Commission full bench will conduct a review of six modern awards with respect to their provisions relating to abandonment of employment. The awards to be reviewed are:
  • Business Equipment Award 2010
  • Contract Call Centres Award 2010
  • Graphic Arts, Printing and Publishing Award 2010
  • Manufacturing and Associated Industries and Occupations Award 2010
  • Nursery Award 2010, and
  • Wool Storage, Sampling and Testing Award 2010
The bottom line: While an employee may have abandoned their employment, and there is a process under an applicable award which deals with the issue, an employer is still required to take the additional step of ending the employment relationship.
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