Abandonment of Employment: What to do when employees go missing in action

In the realm of workplace relations, the expression ‘abandonment of employment’ has become synonymous with situations whereby an employee abruptly ceases to attend work for an extended period of time, without a valid explanation.

While it may seem straightforward to conclude that an employee has indeed abandoned their employment, businesses must exercise caution to avoid potential legal ramifications (such as unfair dismissal), particularly where the employee has indicated they wish to continue working. The recent case of Nada Hinic v Safety Assembly Moulding Pty Ltd [2023] FWC 1006 serves as a reminder of the importance of thorough consideration before hastily assuming an employee has abandoned their employment.

The facts

Ms Hinic, a process worker at Safety Assembly Moulding Pty Ltd (Company), had suffered an injury at work in late 2021. Upon the conclusion of workers’ compensation leave in June 2022, Ms Hinic had been cleared for ‘some type of work’ by her treating doctor but had repeatedly refused to attend a number of return-to-work appointments.

In light of this, the Company wrote to Ms Hinic asking for the reasons she had been unable to attend work to which Ms Hinic provided a detailed response and outlined her willingness to continue employment with the Company. Despite this, two months later, the Company issued Ms Hinic with a letter declaring they considered she had abandoned her employment.

In the wake of this unexpected dismissal, Ms Hinic lodged an unfair dismissal claim, adamantly asserting that she had not abandoned her employment. Ms Hinic argued that a return-to-work plan had not been provided, a specific return-to-work date had not been approved and that she had been certified as unwell for each return-to-work appointment.

In finding that the dismissal was unreasonable, Deputy President Bryce Cross held that ‘a reasonable person would not have determined that the worker had abandoned her employment, showing the dismissal was initiated by the employer’.

When will an employee’s unexplained absence be genuine abandonment of employment?

To determine if there has been a genuine abandonment of employment, it must first be determined which party is initiating the termination.

The case above highlighted that an employee will be ‘dismissed’ if their employment with the business has been terminated on the employer’s initiative, as outlined in section 386 of the Fair Work Act 2009 (Cth).

A termination will be at the ‘employer’s initiative’ when the employer’s actions ‘directly and consequentially’ result in the termination of employment and had the employer not taken this action, the employee would have remained employed.

The test for renunciation was set out by Chief Justice Gleeson in Koomphatoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 as:

‘…conduct which evinces an unwillingness or an inability to render substantial performance of the contract…it may be termed ‘renunciation’. The test is whether the conduct of one party conveys to a reasonable person, in the situation of the other party, renunciation of contract as a whole or of a fundamental obligation under it…’

Although it is ultimately the employer’s action that terminates the employment contract in the case of an abandonment of employment, the employment relationship will conclude due to the employee’s renunciation of their obligations. As such, the employer will have a defence to any application for unfair dismissal subsequently made by the employee.

What should I do if I suspect my employee has abandonment their employment?

In the first instance, where an employee is suspected to have abandoned their employment, the employer must make reasonable attempts to contact the employee.

The Fair Work Commission (Commission) has highlighted the significance of this initial step on a number of occasions. For instance, in the case of Orry Thompson v Zadlea Pty Ltd [2019] FWC 1687, the Commission held, ‘the employer needed to have attempted to contact [the employee] before it could legitimately conclude he had abandoned his employment’.

In making ‘reasonable attempts’ to reach the employee, employers should adopt a multifaceted approach, encompassing various communication methods such as telephone, email, text message, and even reaching out to next of kin, in their concerted effort to establish contact.

How long should I wait for the employee to respond?

Apart from allowing a ‘reasonable’ period of time to pass, it is important to note that there is no statutory timeframe that an employer must wait before it can assume that an employee has abandoned their employment.

However, in determining a ‘reasonable’ period of time, it would be recommended to consider the following factors:

• the employee’s circumstances leading up to the unexplained absence (such as approved leave);
• previous absenteeism patterns and behaviour;
• the employee’s physical and/or mental health; and
• any recent contact with the employee or their next of kin.

The employee won’t respond to any attempts to contact them, what are the next steps?

Abandonment of Employment Letter

After all available communication channels have been exhausted and a reasonable period of time has passed, the employer can consider commencing the abandonment of employment process.

To do this, it is recommended to prepare a letter outlining that the employee has been absent without explanation, the business has made reasonable attempts to contact them and, should the employee not respond within 7 days, it will be considered they have abandoned their employment.

As a matter of best practice, this letter should be sent via email and registered post.

Termination Letter

If the employee fails to respond to the abandonment of employment letter within the prescribed timeframe, and they have not contacted the business, a termination letter can be issued confirming that employment has ended by way of abandonment of employment.

Want To Know More?

If you want to learn more about when an employee’s absence can be considered abandonment of employment, or for assistance preparing an abandonment of employment letter, please contact NRA Legal on 1800 572 679