Abandonment of employment how to avoid it
I think we have all faced this situation somewhere in our work life. With the stresses of the economy. With the ending of the pandemic, employers are reacting a lot quicker and decisively than previously. Read on get the answers, what’s the legal definition,? for abandonment of employment, how to avoid it. What can I do?. Can I be dismissed? Is this a resignation? Please read on.
Definition of abandonment of employment
The Fair Work Ombudsman defines ‘abandonment of employment’ as occurring when an employee fails to attend work for an unreasonable period of time. When the employee does not have a reasonable excuse for failing to attend. Who does not communicate with their employer regarding their absence. It is important to note that modern awards do not contain abandonment of employment clauses. Although this used to be the case.
Although the ensuing discussions involve references to various awards. The applicability of these cases are highly relevant to estimating whether an employee has actually abandoned their employment. What the subsequent processes would be.
Within the previous operation of Clause 21 of the Manufacturing and Associated Industries and Occupations Award 2020. An employee who remained absent from work for a period longer than three days, would be considered as having abandoned their employment. This is without evidence to the contrary. Furthermore, if an employee is taken to have abandoned their employment, they have a period of 14 days from their last day at work to satisfy the employer that they had reasonable cause for the absence.
Awards are important guidelines
However, if the employee is unable to meet these conditions. They will be taken to have abandoned their employment, as of the last day that they attended work. Although these terms relate primarily to the Manufacturing Award, the other Awards used to have similar provisions.
As aforementioned, these provisions within the Awards are no longer operational. But their provide important guidelines and benchmarks around reasonable periods of times within which an employee may be taken to have abandoned their employment.
Can I be automatically terminated for abandoning employment?
In the unfair dismissal case of Boguslaw Bienias v Iplex Pipelines. The Full Bench of the Fair work Commission found that abandonment of employment does not automatically mean that an employee is terminated. Or dismissed for that matter. In fact, the obligation is on the employer to take a positive step to conclude that the employee was not absent for a reasonable cause.
This obligation may be satisfied by making attempts to contact the employee. Requesting supporting documentation for the explanations provided to them. However, if the employer does not terminate the employee or takes some disciplinary action short of termination, such as standing them down, then the employment relationship is still taken to have continued.
This decision suggests that an individual cannot be automatically terminated simply because they did not attend work for a period longer than three days. Without communication with their employer regarding a reasonable cause for doing so. In fact, if the employer suspects that an employee has abandoned their employment, they must act to terminate the employee or take other relevant disciplinary action.
Employee’s abandonment of employment constitutes serious misconduct
However, the employer may argue that the employee’s abandonment of employment constitutes serious misconduct. In turn providing them with a reason to terminate the employee. This is because the employee’s absence from work may demonstrate a willingness to act in a manner that is inconsistent with the continuation of the employment relationship. As such, abandonment of employment falls within the definition of serious misconduct.
Nevertheless, in dismissal case of E N Ramsbottom Ltd v Chambers. The New Zealand Court of Appeal stated employers must exercise caution. You should not too readily draw an inference of abandonment of employment. In fact, if the employer does seek to argue that the employee has been absent from work. Has therefore abandoned their employment, they are burdened with a high threshold to prove this nexus and establish a causal connection between absence and abandonment.
What if I cannot go to work because I am injured?
In his decision, Hatcher VP distinguished abandonment of employment constituting serious misconduct and abandonment of employment arising from some incapacity. At paragraph , he states:
“[I]f the absence is caused by an incapacity (such as an injury) to attend work for the requisite period. And the employer does not accept that this constitutes a reasonable cause for the absence (because, say the injury was caused by the employee’s own negligence or was self-inflicted). A termination for such absence may not be characterized as being for serious misconduct.”Vice President Hatcher
This means that if an employee is injured. Even if they caused that injury themselves and it is entirely unrelated to the course of their employment, the employer cannot argue that they have abandoned employment. In such situations, as the employee is physically incapacitated from attending work. Their absence could not be construed as amounting to abandon of employment and serious misconduct. Consequently, the employee cannot be terminated for the sole reason of failing to attend work due to their injury.
What if I cannot go to work because of a natural disaster?
Within the current climate and the floods in Brisbane, the question arises as to whether employees can be terminated or held to have abandoned their employment if they are unable to attend their worksite due to a natural disaster.
The first consideration is the type of work you are completing and whether it is practicable to complete your work remotely, from home. The advent of the COVID-19 pandemic and the multiple lockdown periods have resulted in businesses being able to transition quickly. And efficiently into remote working arrangements.
As such, if it is possible for you to continue working from home and completing the essential responsibilities of your role. Then your employer is likely to communicate with you regarding such arrangements in situations where you cannot physically travel to the worksite.
However, if the nature of your role requires that you be present on premises. However you are unable to do so because:
The streets are flooded.
There are ravenous bushfires
Some other natural disaster has struck,
Then the incapacitation argument can be raised. It is arguable that you are physically incapacitated from attending the worksite. Through no fault of your own, and in such circumstances, being unable to attend work cannot be construed as an abandonment of employment.
In such situations, it is highly advisable that you communicate with your employer. A lot of the tine abandonment of employment is really a misunderstanding. Contact them as soon as possible to advise them that you are unable to work or to attend the work premises. In Park v Ceres Enterprises Limited (Auckland). The Employment Relations Authority of Auckland emphasized the importance of maintaining communication with employers, where possible. In that case, the Member found that the Applicant had multiple opportunities in which she could contact her employer and explain her circumstances, but had failed to do so.
The Applicant had travelled overseas and upon her return. Was able to contact her employer, but chose not to do so, and when a subsequent earthquake struck, she argued that the earthquake had diminished her ability to communicate with the employer. The Member rejected this argument and stated that she had abandoned her employment because she could have contacted her employer and extended her leave. However she consciously chose to do so and her decision was not impacted by the earthquake.
Although this is a case concerning the Christchurch earthquakes, its application is highly relevant in Australia to establish the importance of maintaining communication with your employer and informing them of any incapacity regarding attendance at work.
The Ability to Travel to Work
Another relevant consideration is whether you are reasonably able to travel to work for the purposes of conducting your operations. It may be argued that if there are reasonable means for you to attend the worksite, but you choose not do utilise these methods, then you have abandoned your employment.
In Maria Jane Baker v Vladimir Hardi Proprietor. Commissioner S Wood of the Western Australian Industrial Relations Commission dismissed the Applicant’s unfair dismissal application. Even though the floods had temporarily blocked her access routes to attend the workplace. In that case, the Applicant could not attend work for the period of one week due to the flooding in her neighbourhood.
However after one week, an alternative route was available that the Applicant could have used to attend work. As the Applicant had not done so, Commissioner Wood found that she had in fact abandoned her employment. This is because she elected to travel to Perth and did not communicate this to her employer. Consequently, it is important to closely monitor the situation if you have been impacted by a natural disaster and to communicate your circumstances with your employer.
What can I do if my house and family have been affected?
If you cannot attend the workplace because your house and family have been affected by a natural disaster, it is possible for you to take personal leave or compassionate leave.
Under s 97 of the Fair Work Act 2009 (Cth) (hereafter referred to as ‘the Act’). Employees who are not casual employees can take paid personal or Carer’s leave if they need to take care of themselves or a family member. This can be after such natural disasters have occurred. If you are seeking to take personal or Carer’s leave, ensure that you obtain a doctor’s certificate as evidence of your unfitness for work. Clearly communicate with your employer regarding the taking of your leave and the expected duration that you will be on leave.
Furthermore, it is advisable that you check your accrued entitlements to ensure that you have accrued sufficient personal leave days for the period of time that you are expecting to not attend work. If your accrued personal leave/Carer’s leave days have already been used, or if you are a casual employee, then you are entitled to two days of unpaid Carer’s leave. In order to provide support and care to an immediate family member. Importantly to note. This unpaid leave entitlement is only applicable where your family member is ill or injured. Or an unexpected emergency (i.e. natural disaster) has occurred.
If one of your direct family members has unfortunately contracted a life-threatening injury or has passed away because of the natural disaster, then you are also entitled to take two days of compassionate leave. Once again, it is crucial that you notify your employer about your intention to take leave. Inform them of the expected duration that you expect to remain on leave.
Take Away Messages
Abandonment of employment is a serious concern and employers who believe that an employee has abandoned their employment. The Employer may take the necessary disciplinary action to rectify the situation. Consequently, it is crucial that employees maintain open streams of communication with their employer. If they are planning on remaining absent from work for a duration of time. They should / have to communicate this with their employer. (preferably in writing, then you have a evidence trail)
In situations where the employee is injured, incapacitated or has been adversely impacted by natural disasters. It is difficult for an employer to prove that they abandoned their employment. This is because these facts alone do not suggest that the employee acted to bring the employment relationship to an end. Nevertheless, employees should remain diligent in communicating their circumstances with their employers. Especially where they believe they will be absent from work for extended period.
Conclusion to: Abandonment of employment how to avoid it
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