Fair or not? 5 abandonment of employment reasons
It’s safe to say that on our worst day at work, most of us have at one point felt like abandoning our employment, just walking out. Of course, only few of us will actually choose to walk off the job indefinitely. We feel inherently responsible for our roles regardless of how badly the employer has treated us. But even so, abandonment of employment is something that happens fairly frequently in Australia and around the world. Is it Fair or not? is the question, obviously it depends on the circumstances and the context.
In this article, we’ll look at five reasons why an employee may not show up for work and tell you if it amounts to abandonment of employment. Or if it is a fair reason to be absent from work. But first, what actually constitutes abandonment of employment?
The definition of abandonment of employment
Abandonment of employment is when an employee doesn’t turn up for work for an extended period. The Fair Work Commission doesn’t outline exactly how long an employee must be absent. (however some awards do have specific clauses that refer to timelines more relevant to that particular industry) It states that abandonment of employment is generally when an employee:
- Has been absent from work for an unreasonable length of time
- Has not provided a reasonable excuse for their absence
- Has not spoken to their employer about being away
During an employee’s absence, an employer must make several attempts to get in contact with them. If the employee fails to respond, they can be dismissed for abandonment of employment. If you need more clarity on what constitutes abandonment of employment, you can read more about it in our article here.
Now that you know the general definition, let’s look at five different abandonment of employment scenarios. We’ll discuss which ones could see an employee fairly dismissed, and those in which their absence is defensible.
You’re stuck overseas
Imagine this. You take leave from work and make the trip from Australia all the way to India. You’re there to care for your parents. But due to their ailing health, you’re forced to stay with them for longer than expected, exhausting your approved leave.
Then, the COVID-19 pandemic hits, closing international borders. You’re stuck overseas, but you did have ample opportunity to return to Australia in the previous months. You receive an email from your employer saying that if you don’t reply, you’ll be dismissed due to abandonment of employment.
You reply, telling your employer that you will return to work as soon as the international borders open. With the borders still closed, a few weeks later you receive word from your employer that you’ve been dismissed due to abandonment of employment.
This is what happened to an Australian employee, whose dismissal for abandonment of employment was ruled as valid by the Fair Work Commission. The key to this dismissal was that the employee had been given multiple warnings that he was at risk of abandonment of employment, prior to the international border closures. By the time he was dismissed, the employee had been overseas for a total of 20 months.
If you find yourself stuck overseas for reasons outside your control, this will generally be regarded as a fair reason for being absent from work. But if there are no such reasons preventing your return, and you stay beyond your leave entitlements, it could very well lead to dismissal due to abandonment of employment.
You’ve been on a drug binge
On Reddit, an IT manager shared the story of an employee who started using recreational drugs heavily. Naturally, this soon caused problems in his work life. “I had an employee who started to use drugs heavily, when they stopped showing up to work, they were terminated for job abandonment,” wrote the IT manager.
If there’s one way to get an absent employee’s attention, it’s surely to deny them their pay by way of dismissal. And that’s exactly what happened in this case. The employee soon re-emerged at their workplace, providing a number of excuses for their absence.
“Within a few days the employee showed up to work and sat down at their desk,” wrote the IT manager. “I brought them to HR to review their termination with them. When asked why they didn’t respond to any of our calls they stated they lost their phone, and they still haven’t found it.”
As we mentioned at the start of this article, abandonment of employment is when an employee hasn’t provided a reasonable excuse for their absence. And having lost your phone likely wouldn’t qualify as a legitimate excuse. Especially since this employee’s phone wasn’t lost at all.
“My comment immediately was your phone is in your hand, which they tried to convince me and the HR person it was not,” wrote the IT manager. “I took my cell phone out and called their phone, which started to ring out loud. The employee was high as a kite while in front of us. They were escorted out shortly after.”
You’re stuck in jail
A few years ago, a particularly unusual case of abandonment of employment made the headlines. It involved a KFC worker who was sent to jail on domestic violence charges.
Now of course, if you’re locked away in a cell, you can’t surely be expected to turn up to work. And in normal circumstances, this could be a fair excuse to explain your absence. But in this particular case, the KFC worker failed to do one important thing. He didn’t notify his employer of why he was away, which could have been done through his lawyer.
The KFC worker was sent several emails and letters from his employer. Finally, his partner received one of them, informing her that a meeting had been arranged to discuss his absence and criminal charges. The worker’s partner replied that he would be released from prison by the time of the meeting, and therefore attend.
However, things happen in the prison system, and the worker was denied release. Of course, he failed to make the meeting and was terminated for abandonment of employment. When the worker was eventually granted bail, he lodged an unfair dismissal application. But the Fair Work Commission ruled that his dismissal was valid.
This all goes to show that if you get nicked and are locked up for an extended period, it’s probably not going to be a fair excuse for abandonment of employment.
You’ve refused to return to the office
For many Australians, working from home became a routine part of life thanks to COVID-19. But as we begin to live with the pandemic, many employers are starting to demand that employees return to working in the office.So if you refuse to return to the office, is that considered abandonment of employment?
There have been several cases of employees being dismissed for refusing to return to the office. One such case involved an Australian Federal police employee who refused to do so based on medical advice relating to a variety of mental health issues. The employee had failed to engage his employer when it made attempts to discuss his return to the office. He was subsequently dismissed for failing to comply with a reasonable and lawful direction – a dismissal that was ruled as valid by the Fair Work Commission.
This, and other cases of failing to return to the office, are not considered abandonment of employment. That’s because the employee is still working from home and in contact with their employer. Still, if you don’t have a good reason to refuse returning to the office, you face the risk of being dismissed. A argument that employers are currently putting forward in unfair dismissal cases is the failure to follow a lawful instruction, by refusing to return to work. Make sure you have your arguments lined up, or dismissal may become inevitable.
You’re in hospital
On Reddit, an American employee for a logistics company shared the story of how they were dismissed for being in hospital. The employee had a near impeccable record of turning up to work. However, their employer was suspicious when they revealed that they had been admitted to hospital.
“I was contacted by HR questioning me about if I was really in the hospital,” said the employee. “I let them know I was and then I received another call from HR about an hour later being told I was being fired for lying because they called the hospital and they would not confirm I was a patient (you know, by law).”
Swift dismissal occurs
The employee, flabbergasted at their swift dismissal, offered to provide proof that they were indeed in hospital. But the HR department still didn’t believe them. At first, the employee was simply in disbelief that they had been dismissed for abandonment of employment. But after that feeling faded, they soon “got PISSED” and decided to get revenge.
“I emailed every single person in our 143-person dept and broke down what happened. Including the texts to my boss and proof I was in the hospital,” said the employee. “I heard from friends the next day an emergency meeting was called for the entire dept in regards to the email. They basically just said they couldn’t believe I would air my dirty laundry like that and then shut down anyone trying to question how this was acceptable as fellow employees.”
It’s important to note that this took place in the United States, where employees have far less protections than in Australia. Here, you can’t be dismissed so swiftly based on a hunch that your employee is lying. And secondly, being in hospital is a fair excuse for not turning up to work.
Fair work provides certain protections
If you are required to stay in hospital for an extended period due to illness or injury, the Fair Work Act 2009 provides certain protections. An employee may be protected from dismissal if they are absent from work for less than 3 consecutive months. Or less than a total of three months in the last twelve-month period. The employee must provide evidence of their illness or injury in order to receive protection.
You can read more about how the Fair Work Commission treats extended absences from work in our article here.
Employees personal issues
Surprisingly a lot of employees somewhere along the line end up homeless. Examples: Parents kick them out. Partner kicks them or gets a restraining order. Landlord changes the locks. House/ unit effected by fire or floods
Of course you immediately need / think you have to find somewhere to live and to protect your possessions and children. In turn in the mayhem forget or don’t prioritize to inform the employer. It is important to keep the employer in the loop, most appreciate it, even though they may be a bit cranky by the inconvenience of you not being there.
Conclusion to: Fair or not? 5 abandonment of employment reasons
Sometimes, an employee may be dismissed for a long absence from work, but they actually have a fair excuse for it. Other times, an employer may not have taken the required steps to make contact with the absent employee, which can render their dismissal unfair.
If you have been dismissed for abandonment of employment, A Whole New Approach can help you understand if you can challenge your dismissal at the Fair Work Commission. We are Australia’s leading workplace advisors and commentators. In the last two decades, we have assisted over 16,000 employees to make an unfair dismissal claim.
Every situation is different. We are happy to advise you, all Fair work matters, probation issues, workplace investigations, workers rights, casual employment concerns.
Call us today on 1800 333 666 for a free and confidential conversation.
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