Abandonment of employment that went wrong
Mental health and workplace stress In Australian workplaces the term “abandonment of employment” strikes a particularly strong note in a era of increased mental health
Gary Pinchen
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What is Abandonment of Employment?
Abandonment of employment 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.
When does an absence constitute abandonment of employment?
The test for abandonment of employment is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.
Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.
In Sharpe v MCG Group Pty Ltd, an employee who had notified her employer that she would be unable to attend work due to medical reasons, was then terminated. The Commission held that the employee had been terminated at the initiative of the employer. The argument that the employee had abandoned her employment by not attending for work, as directed, was rejected. Instead, it was held that the employer had terminated the employment.
In Le Plastrier v Brons (Northern Belle Pty Ltd), the applicant disagreed with the employer regarding an allegedly non-compliant certificate for one of the workers. The applicant was concerned with her statutory obligations to the licensing authority. The employer over-ruled her saying the certificate was acceptable. When the applicant refused to work on the same shift as the worker she was told that her position would no longer be available as the day shift was finishing. The applicant was offered some work by another employee, however at no stage did the employer confirm the offer. This was found to constitute a termination of employment at the initiative of the employer.
In Thompson v Zadlea Pty Ltd T/A Atlas Steel, the unfair dismissal application was lodged by a Canadian national who had been employed as a welder/metal fabricator. The applicant originally came to Australia on a temporary working holiday visa, which expired in April 2018. He then entered into an employment contract with Atlas Steel whereby it agreed to be his approved nominee for a Temporary Skill Shortage Visa. On 21 June 2018 the applicant had an altercation with another employee. The following day the applicant left the workplace after encountering the same employee. The applicant went to his doctor who provided him with a certificate of capacity regarding a work-related injury/condition, which indicated that it was necessary for him to be off work until 5 July 2018. During this period the respondent concluded that the applicant had abandoned his employment, given his absence from work for a continuous period of more than three days, and consequently decided to withdraw its visa nomination.
The Commission was not satisfied that the applicant abandoned his employment on the basis he ceased to attend his place of employment without a proper excuse or explanation. The Commission was satisfied that by withdrawing its visa nomination the respondent effectively acted to terminate applicant’s employment, and that its actions in doing so were harsh and unreasonable. The respondent made no attempt to contact the applicant after he left the workplace on 22 June 2018. The Commission found that the applicant was unfairly dismissed and ordered $7,022.40 compensation, less deduction of tax as required by law
Abandonment of Employment or “Heat of the moment” resignation?
An employer is generally able to treat a clear and unambiguous resignation as a resignation. Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise. In special circumstances an employer may be required to allow a reasonable period of time to pass. The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.
In Claypole v Australian Native Landscapes, an employee was dismissed during a violent argument with his employer which involved the employer chasing the employee in a car and leaving the employee on the side of the road without a vehicle to drive home in. The employer argued that the employee had abandoned his employment and later argued that he had breached company policy. It was found that there was no valid reason for the dismissal and the applicant was not notified in a proper manner, nor given an opportunity to respond.
In Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group, an employee gave evidence that he was suffering from depression and anxiety exacerbated by work stress. The employee had been dismissed while he was on personal leave and was covered by a medical certificate. The employer had refused to accept the medical certificates and had claimed the employee had abandoned his employment. The employee then lodged an Unfair Dismissal Application, 26 days out of time.
Employer’s Obligations
If an employer believes an employee has abandoned their employment, they must make genuine attempts to contact the employee to ascertain the reason for their absence from the workplace. Appropriate methods of contact may include telephone, mobile phone, email or fax. The employer should also make file notes of all attempts to contact the employee, including any message left and conversations had and keep these file notes on the employee’s personnel file.
Where the attempts to contact the employee are unsuccessful, the employer should then send a letter to the employee’s last known postal address via registered post or an email with automatic sender notification activated. In making contact with the employee, the employer should seek to obtain a reason for the absence, if the absence is due to a medical condition, the employer should seek appropriate evidence, if the reason is not due to a medical condition, an explanation of the absence from the employee and an indication of what their intention is regarding their employment.
Where the employee fails to respond to the employer’s attempts to contact as outlined above, the final suggested step is to send another letter or email. This final correspondence should set out all the attempts the employer has made to contact the employee (including specific details such as dates, details of message left, emails, SMSs, letters and any other contact methods); and notify the employee that if by a specific date (stipulated by the employer), no contact is made by the employee or a valid reason for their absence is not provided, the employer will deem that the employee to have abandoned their employment. If the employee fails to respond to this final correspondence, the employer can deem that the employee has abandoned their employment, which will amount to a repudiation of the employment contract and the employer will accept the repudiation and terminate the employment contract.
Abandonment of Employment and Unfair Dismissal Applications
If your employer is arguing you abandoned your employment but you believe the termination was at their initiative, please contact us on 1800 333 666 to see if you are eligible for an unfair dismissal application.
Despite assuming you have abandoned your employment, if the employer has not followed the suggested steps or any reasonable steps an employer would take in their shoes in order to determine whether an employee has abandoned
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Abandonment of Empoyment Questions & Cases
Explore everything there is to know about abandonment of employment and how it relates to your rights under the Fair Work Act 2009. We answer everything you need to know so you’ll have a clear understanding of what steps to take and what protections are available to support you in resolving any employment and abandonment-related matters.
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