Abandonment of employment: Is jail an acceptable excuse?
Abandonment of employment arises when an employee doesn’t turn up to work for an unreasonable length of time. Also, when they haven’t informed their employer that they will be away, nor provided a reasonable excuse. But what if your excuse is that you have been imprisoned for a crime? Abandonment of employment: Is jail an acceptable excuse?, this scenario is not uncommon, around issues of injury, illness, victim of domestic violence, accidents overseas. Its well worth reading to know your rights
That’s what happened to an Auckland KFC worker who was dismissed for abandonment of employment after landing himself in the grey bar hotel. Let’s look at the series of dramatic events that led to his imprisonment. See how the Employment Relations Authority (New Zealand’s equivalent of the Fair Work Commission) came to a decision on whether he had in fact abandoned his employment.
An abortion and a nasty injury: The unfortunate events leading to abandonment of employment
On 25 October 2015, Indian national Rohit Arora commenced work with Restaurant Brands Limited (RBL). The franchisee of a KFC in the Papakura district of Auckland. Mr Arora, a computer engineering student who had immigrated to New Zealand a year earlier. HE had secured the role through a friend who was the manager at the KFC.
Not long after Mr Arora commenced employment at the KFC, he experienced a series of unfortunate incidents that would ultimately see him locked up. It all started when he entered into a relationship with a woman who soon became pregnant. The woman, however, wanted to terminate the pregnancy, and an abortion was performed on 17 December 2015.
Later that same day, Mr Arora was called into work by the manager. At the end of his shift, he was tasked with cleaning the hood filters above the pressure cookers. While standing on a step ladder on the edge of the cooker, Mr Arora slipped and his left leg was immersed in hot cooking oil. He was taken to a local hospital and upon admittance, hospital staff were told that Mr Arora’s injuries had occurred at home.
No one told the employer about the injury
The hospital records show that his injuries were allegedly sustained by splashing hot oil onto his leg while frying. No one present at the KFC told RBL of the injury. Mr Arora subsequently attained accident compensation for a “non-work” injury. Mr Arora stayed at the hospital until the following day. He returned on 29 December for skin grafting and was released on 6 January.
The KFC worker is arrested for a crime involving his partner
Mr Arora returned to work at the KFC on 19 March 2016. Four days later, he requested a transfer to a KFC in the Mangere district of Auckland, where his friend and former manager was now employed. This was when time performance issues began to arise for Mr Arora. In May 2016, he received “coaching” discussions for not complying with closing procedures properly. Also, for giving late notice that he wouldn’t be attending a shift and for leaving work early without closing up. His transfer to KFC Mangere was subsequently refused.
Then, on 10 September 2016, Mr Arora was arrested for a criminal matter involving his now former partner and taken into custody the next day. On that same day, his former partner went to KFC Papakura and informed the store that Mr Arora was in custody and that he would appear in court the next day.
The KFC worker attempts to contact his employer
What Mr Arora did next was critical to this abandonment of employment case. After he was denied bail on 12 September, Mr Arora asked his barrister to inform KFC Papakura that he wouldn’t be coming into work because he was in jail. However, her calls to the store went unanswered, so she left a telephone message with her contact details. The barrister never received a call back, and Mr Arora made no further attempts to contact the KFC or RBL.
The actions of RBL during this time were also critical to this abandonment of employment case. Between 11 and 26 September, the KFC Papakura manager made five unsuccessful attempts to reach Mr Arora on his mobile. By 26 September, Mr Arora had missed three rostered shifts. RBL subsequently sent a letter to his last known postal and email addresses. In it, the company notified Mr Arora of a meeting that would investigate his work absences and how his conviction may impact his future employment. The meeting was set for 29 September.
Mr Arora’s partner then sent an email to RBL informing them that Mr Arora was in jail and would be released on 5 October. RBL decided to postpone the meeting until 14 October and sent Mr Arora a letter informing him as such.
The employee is terminated for abandonment of employment
When Mr Arora failed to turn up to the meeting, RBL dismissed him from his employment on 24 October, citing abandonment of employment. According to Mr Arora, it wasn’t until his release from prison on 28 January 2017 that he became aware of the dismissal.
On 7 February, Mr Arora instructed his lawyer to send a letter to the Employment Relations Authority (ERA) citing his personal grievances of unjustified disadvantage and dismissal. But according to ERA documents, the letter contained minimal information about his dismissal grievance, with no explanation for why or how the dismissal was unjustified.
It wasn’t until 31 August that Mr Arora filed a statement of problem with the ERA, in which he provided specific details about his unjustified dismissal for the first time. In October, Mr Arora’s criminal charges were dropped.
The KFC worker takes action against his abandonment of employment dismissal
Almost a year after submitting his statement of problem, on 20 August 2018, was Mr Arora’s abandonment of employment case was finally heard by the ERA. This was due to a series amendments. Applications and substantial amounts of evidence being filed by Mr Arora outside of timetabling directions. In his statement of problem, Mr Arora alleged that he was dismissed for abandonment of employment. “without me being given any chance to explain” and that RBL should have known he was in prison.
RBL, however, argued to the ERA that in addition to a letter of termination sent to Mr Arora’s last known contact address, he had constructive knowledge of his dismissal. This is because Mr Arora’s employment agreement provided for abandonment. RBL therefore argued that he knew he would have to contact them about his failure to show up at work. The company highlighted that Mr Arora didn’t make any further attempts to contact them even after his lawyer failed to contact them.
RBL also raised the issue of Mr Arora’s late submissions to the ERA. The company claimed that his last day to raise a personal grievance was 22 January 2017. Almost a fortnight before he had done so. Mr Arora, however, disputed this date on the basis that he didn’t know his employment had been terminated until he was released from prison on 28 January. Therefore, he argued that he should have benefited from the 90-day limitation period.
Was it abandonment of employment? The ERA makes its ruling.
After weighing up the evidence from both parties, the ERA ruled that Mr Arora did in fact know prior to January 2017 that his employment could be terminated. The authority acknowledged his lawyer’s attempt to contact RBL in September 2016 to explain his whereabouts. However, the ERA affirmed that by October 2016, Mr Arora had made no further attempts to contact RBL.
The ERA dismissed Mr Arora’s claim that the responsibility fell on RBL to find him in the prison system. The authority ruled that Mr Arora should have attempted to contact them and explain his whereabouts and situation. Due to the lack of contact, it was reasonable to believe that Mr Arora had abandoned his employment.
The ERA also found that Mr Arora’s initial employment agreement provided for abandonment of employment. Therefore, it was his responsibility to let his employer know of his situation. The authority found that it was reasonable for Mr Arora to assume that his employment was terminated. As a result, it was ruled that his submission of personal grievance on 7 February 2017 was indeed late.
Abandonment of employment in Australia
When it comes to abandonment employment, the laws in Australia are remarkably similar to those in New Zealand.
In Australia, when an employee fails to attend work for an unreasonable amount of time without explanation, an employer must make several attempts to contact the employee via email or phone. If those attempts fail, the employer must send a letter via post or email to the employee’s last known address.
If they still don’t get a response, the employer must send one last letter to the employee that explains all the previous contact attempts. It must also state that if the employee fails to reply by a certain date, the employer will determine that their employment has been abandoned.
Abandonment of employment: Is jail an acceptable excuse?
Have you been unfairly dismissed by reason of abandonment of employment?
It’s important to know that your employer has an obligation to take the aforementioned steps before they can dismiss you for abandonment of employment. On the other hand employees cannot simply stay away. Be it for good reason, not keep in touch with your employer, then turn up back at work when its convenient for them. Both the employee and employer have obligations in the employment relationship.
We are A Whole New Approach, the nations leading workplace advisors. Any matters involving the Fair work Commission, workers rights, employment rights, being sacked, wanting to sue your employer give us a call.
Give us a call today on 1800 333 666 for a free initial consultation to see if you’re eligible for an unfair dismissal application.
Articles similar to Abandonment of employment: Is jail an acceptable excuse?
Fair work Australia, click here
One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.