How can an employee abandon their employment? 

Abandonment of employment is when an employee fails to go to work for an unreasonable amount of time. While also failing to notify the company or provide a valid reason why. After an employee abandons their work the employer can no longer trust that the employee will attend future shifts. 

Therefore in typical circumstances, the employer can reasonably dismiss the employee. Whether that be no longer scheduling the employee as a casual, or paying out a full-time/ part-time employee’s entitlements. 

What is considered unreasonable? 

What is considered an unreasonable time away is different for each employee. Some people may work five days a week, seven days on seven days off, or only once a fortnight. However, once the employer notices that the employee is missing, it is their responsibility to reach out to the employee. 

For an employer to fairly “dismiss” an employee who has abandoned their work the employer has a responsibility to prove that they had tried to reach out to the employee first. This ensures that the employer is made aware in case the employee has been in an accident or has had a serious emergency.  

Missing a single shift due to the above reasons is not abandonment of employment. Even if the employee has missed a considerable amount of time however has a valid reason, that still may not be considered abandonment of employment. 

Unreasonable manager sacked sick employee

In the case of Ah Shan v Shamrock Consultancy Pty Ltd [2020] FWC 5364, an employee was on sick leave when she was accused of abandoning her employment. She was employed as a Business Development Manager from 2019 to 2020. 

On 26 March 2020, the employee was absent from work and used her sick leave. She provided medical certificates and would be unfit to work from the 26 March to 2 April 2020. Furthermore, she emailed a manager to explain that she would be away on sick leave. 

At the time, during the beginning of Covid-19, the company had a policy where employees were not allowed to return to work until they had a negative Covid-19 test and had medical clearance. On Friday and Monday (within the employee’s sick leave period) the manager tried to call her a total of 10 times with no reply. 

When the employee replied to a manager she explained that she would not be allowed to get medical clearance. Furthermore, there were issues as the employee did not meet the criteria for Covid-19 testing at the time. Therefore, it will take a few days for her to have medical clearance even if she were not sick or required sick leave. 

Manager harasses his sick employee

In the following days the employee and a manager had sent multiple text messages back and forth. She explained that there were difficulties with getting tested and was trying multiple avenues. Furthermore, explaining that she was facing financial hardship as she was no longer covered by her sick leave. 

Her manager had called and/or texted almost every day leading up to 15 April 2020. The employee did not reply to each phone call, however she would respond when she had an update. She did not respond at all on Tuesday 14 April. Having claimed that she tried to call on the 15th, however, the manager’s phone was turned off. 

On 15 April 2020, the employee received her dismissal letter. The company claimed that they had tried to contact her, but they received no response. The termination letter was written in a way that assumed the employee had never responded to their messages. Which was clearly untrue. 

The employee lodged an unfair dismissal claim with the Fair Work Commission. The Commission largely supported the employee and criticized the company in their actions. Taking into consideration the employees sick leave and Easter holiday, she had only been away from work for three working days. Within that, she had reasonably updated her manager regarding her medical clearance and responded when they reached out at least a dozen times. 

The employee was clearly trying to do the right thing by the company’s policies and in return was punished for it. The employee was awarded 4 months pay as compensation. 

Man caring for his 11-year-old child is dismissed

In another recent case, a part-time employee was working for a trailer parts and accessories manufacturer in South Australia from 2017. The company was aware that the employee was the primary carer for his 11 year old son who had ADHD. Furthermore, the employee had suffered a work injury and had been diagnosed with depression and anxiety. 

The employee was absent from work from the 16 December 2020 until 12 February 2021. This included an annual black out period for the holiday season. The company argued that the employee was usually unreliable and had previously failed to communicate his inability to go to work. 

The employee was able to explain his absence throughout December, however not for January or February. Importantly, the employer did not try and contact the employee during this time. When the employee returned in mid-February, he was told that he had been terminated due to his abandonment of employment. 

The employee had lodged a general protection claim with the Fair Work Commission. The employer tried to object to the claim. However, the Commission highlighted that the employee had not used all of his personal leave entitlements. Furthermore, the company was aware of his mental health and carer responsibilities. A reasonable person would have reached out and inquired about the Applicant’s status. However, the company did not and the objection was dismissed. 

What does this mean? 

These cases highlight that there is as much responsibility for the employee as there is for the employer. The employee is responsible for notifying any changes that may impact their ability to go to work. The employer is responsible to try and seek clarification from the employee prior to assuming they have abandoned their employment. 

Therefore, there is a benefit to informing an employer of major issues or changes in an employee’s life. This may provide an explanation if the employee finds themselves in a position where they cannot communicate changes to their employer. 

Is abandonment of employment a career ender?

In cases where an employee has deliberately ignored their employees attempts to reach out and had no intention of returning back to the workplace it will be difficult to return to that employer. From the employer’s perspective,  the employee had broken their responsibility and employment contract that outlines that they will go to work. 

Many employees don’t recognise that there is a level of trust required when hiring employees. When that trust is broken it is usually inappropriate for that employee to return to the workplace. If the employee is still adamant on trying to return to the previous establishment, there are a few tips that may help. 

Steps to go back to work

Firstly, to understand that an employer is not required to rehire an employee who has abandoned their work. That was the employees prerogative and their consequences to face. However, in saying that, an employer may consider rehiring that employee if the position still needs to be filled. Or it is more beneficial to rehire the employee rather than retraining someone new. 

Secondly, to understand that the employee will have to go above and beyond to regain trust and professional standing. This may include coming in early,  staying late, or anything that shows a level of commitment. Reputation is important when trying to build a career. 

To abandon employment can be a black stain that repels future employers and shows a lack of commitment. Depending on how the employee was prior, they may be able to rely on their previous good standing. However, employees who had constant performance or conduct issues are highly unlikely to be rehired. 

 Finally, the employee should be honest to their employer. There is usually a reason why an employee abandons their employment and the employee should explain why they did so. There may be a reasonable explanation or something that can be fixed within the organization. Keep in mind that every company and circumstance is different. 

An employee who left 6 months ago because they “didn’t like the job anymore” will have almost no prospects of being re-hired compared to someone who was missing for two weeks due to severe mental health issues or a traumatic death. All issues are circumstantial. However, an employee will not know about their prospects of being rehired until they ask. 

Before considering abandoning your employment

Some employees reading this article may be considering abandoning their employment due to underlying issues. Here are some topics that employees should consider prior to going down that route. 

Firstly, if an employee wants to abandon their employment due to issues of bullying, harassment, or discrimination, it is important to talk to their employer first. Employees who are victims in these circumstances are not alone and have the workplace right to complain. Furthermore, employers cannot mediate and resolve the situation without being informed first. 

If an employee has tried to talk to the employer and nothing has changed there are alternative options. Such as lodging a general protection claim with the Fair Work Commission. This can be lodged while the employee is still employed and has less opportunity of damaging their reputation going forward. Allowing the Commission to mediate the situation when the employer has felt to do so. The process is relatively quick and there are a variety of ways that a dispute can be resolved. 

Consider your reputation

Secondly, an employee who abandoned their employment must consider the reputational damage they will suffer when trying to find further work. This may not be relevant for employees who do not want their employer as a reference, who have not been there very long, or already have other work to go to. However, many Industries rely on references and reputation. Some industries and locations are niche enough where reputational damage can occur without the employee realizing. 

It is generally advised, where possible, not to burn any bridges with previous employers. An employee will never know what situation they’ll be in where a good relationship with a previous employer will be beneficial. Also keeping in mind that employees who leave without warning are still entitled to receiving their annual leave and entitlements paid if a full/part time employee. 

Lastly, it is relatively easy for employees not to abandon their employment. It will be safer to write a simple resignation letter, or respond to the employer’s attempt to communicate. Most companies understand difficult life circumstances, a change in career, or other factors that guide someone to abandon their employment. However, in most cases where it was a deliberate choice, it simply isn’t necessary. 

Conclusion to: ‘Abandonment of employment and its absurd dismissals’

A Whole New Approach have spent almost 30 years informing employees of their workplace rights and advocating for them in the Fair Work Commission. We are not lawyers but the leading commentators, advisors and influencers on anything to do with the workplace. Don’t do anything reckless without getting in touch with our workplace experts who can lead you down the right path.

As stated, we are not lawyers. however, we are accessible and realistic workplace experts that are in the business of helping employees fight for justice and even the scales between employer and employee. Don’t be afraid to stand up for what you know is right.

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